THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Thursday, May 30, 2019
The Standing Senate 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 10:30 a.m. to give clause-by-clause consideration to the bill.
Senator Serge Joyal (Chair) in the chair.
[English]
The Chair: Welcome. We will resume our clause-by-clause consideration of Bill C-75.
Last night, when we adjourned, we were at clause 400.1 of the bill. I understand there are no amendments, so I would like to call the vote on clause 400.1.
Are honourable senators agreed that clause 400.1 is adopted?
Hon. Senators: Agreed.
The Chair: Thank you, senators.
We are now on clause 401. For that I think there is an amendment by Honourable Senator Sinclair.
Senator Sinclair: It is on its way. It is being translated right now.
The Chair: It is being translated.
With your authorization, honourable senators, I will stand the vote on clause 401 and will call the vote on clauses 402 to 405 since there are no amendments to those clauses.
Hon. Senators: Agreed.
The Chair: Shall clauses 402 to 405 carry?
Some Hon. Senators: Agreed.
Senator Carignan: On division.
The Chair: On division.
Thank you, honourable senators.
Then I would call clause 406.
I understand that Senator Dalphond has an amendment. Could you please move that amendment in the proper way? We are on clause 406 at page 197.
I will identify the amendment with its number. It is on the upper right of your page and it is identified as PJD-406.197. I will invite Senator Dalphond to introduce the amendment in the usual manner.
[Translation]
Senator Dalphond: So it is proposed:
That Bill C-75 be amended in clause 406, on page 197, by replacing line 28 with the following:
“382 and 385, subsection 388(1) and sections 399 and 400.1 come into force on the 90th”.
Senator Carignan: Is there a reason why the numbers are not the same in English and in French?
The Chair: We have to look at the French version. It is possible that the numbers in the French version do not match. Indeed. If you look at the French, Senator Carignan, line 28 starts with subsection 370(1) and sections 376 to 379, while we have sections 382, 385, 399 in the English version.
There is a difference with regard to the lines in the clause, but the content stays the same. Senator Carignan, as you are a francophone, you know that French expressions can be longer than English expressions. Sometimes the opposite can be true, as that is not absolute. That explains the difference.
Senator Carignan: Is it the same for the provisions?
The Chair: Senator Dalphond, you can provide explanations.
Senator Dalphond: The amendment focuses on clause 406, which is part of the section of the legislation titled “Coming into Force”, which gives effect to the wise comments provided to us yesterday by the Department of Justice officials, who reminded us that, owing to a previous amendment concerning fingerprints, amendment had to be drafted for the coming into force date of the provisions. The clause in question adds a passage that concerns the coming into force. It will be followed by an amendment of the same nature for the coming into force of another part of amendments.
The Chair: If I understand correctly, this is the point that was raised yesterday, and for which you committed to consult Justice Department officials to ensure that compliance with provisions, following those we adopted yesterday in relation to fingerprints and DNA, will be reflected in the coming into force provisions of the bill.
Senator Dalphond: That’s right, Mr. Chair. The consultation has been held, and I can confirm that this was approved by the Justice Department representatives.
The Chair: I see Carole Morency nodding in agreement with Senator Dalphond’s comments. Does that answer your questions, Senator Carignan?
Senator Carignan: Yes, thank you.
[English]
The Chair: I understand that I can call the vote on the amendment as introduced by Senator Dalphond.
Shall the amendment carry?
Hon. Senators: Agreed.
The Chair: Shall clause 406, as amended, carry?
An Hon. Senator: On division.
The Chair: On division. Thank you.
Now I will call clause 407.
[Translation]
Senator Dalphond will put forward an amendment in the same spirit as the previous one. Senator Dalphond, you can propose the amendment.
Senator Dalphond: This amendment will be as interesting as the previous one. It is proposed:
That Bill C-75 be amended in clause 407, on page 197, by replacing line 42 with the following:
“370(2), sections 371 to 375, 380, 381 and 387, subsection 388(2), sections 389 to 393, 396 to”.
The Chair: What are the explanations for the record?
Senator Dalphond: I will not insult my colleague’s intelligence. The explanations provided previously apply to this amendment.
[English]
The Chair: I will call the vote on the amendment.
Shall the amendment introduced by Senator Dalphond to clause 407 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 407, as amended, carry?
Senator Batters: On division.
The Chair: Thank you, honourable senators.
Before we move to the adoption of the title, I would like to remind honourable senators, and I am looking at our colleague Senator McIntyre, that when we debated the amendment to clause 196.1 there were correlations made to the preceding section 196 of the Criminal Code to make sure that there was —
[Translation]
—synchronization when it comes to the identification of the various offences mentioned. I will invite Senator McIntyre to present the adjustment that was requested to ensure the amendment’s compliance with the previous provisions of the Criminal Code.
[English]
Senator McIntyre: As we all know, when I tabled the amendment there was a drafting problem, as indicated by the chair. It was suggested by the chair to add notations to the amendment in order for it to be coherent with the code.
We then heard from Ms. Davis-Ermuth, senior counsel with the Department of Justice. On May 16, we received from the Department of Justice the updated amendment that is now coherent with the code. You have a copy of the amendment, so I will now table the amendment.
Chair, is it necessary for me to do the reading?
The Chair: No, it is not. The answer is clear, but I want to circulate the amendment to the honourable senators so that all senators have a copy of it in their hands to satisfy themselves that what was requested by you, senator, has been well taken care of.
I invite you to take a look at the amendments identified as PM-196.62. Do honourable senators have a copy of the amendment as adjusted by the Honourable Senator McIntyre?
You will see on your copies in parentheses that there is the same identification of the offences stated in the previous sections of the code. It’s essentially an exercice d’écriture. Since we are dealing with the Criminal Code, we have to be as precise as possible.
Are there any questions for the Honourable Senator McIntyre on this point?
[Translation]
Senator Dupuis: Senator McIntyre, does the list we have before us, which now includes the title of each section, correspond to the list you read to us at a previous meeting?
Senator McIntyre: Thank you for your question, Senator Dupuis. It is a good one. My staff contacted Senator Dalphond’s office and our two assistants talked to the law clerk. Everything is apparently in order. In addition, this morning, my staff talked to the law clerks about Ms. Davis-Ermuth’s comment regarding Senator Dalphond’s amendment. According to the law clerk, that has no impact on my amendment.
Senator Dalphond: Senator McIntyre and I revised again. In the copy before you, the difference is in the name, in brackets, of the provision. And one of the sections was missing “infanticide” in paragraph 2. In paragraph 4, “bigamy” was removed. In subsection 5, the offence set out in sections 322 to 332 was removed because it had already been covered elsewhere. In subsection 6, the second element, section 354, was also removed. The rest is identical.
Senator Dupuis: I see on the list before me that the term “bigamy” is still there, in section 291. Is there another provision that deals with bigamy?
Senator Dalphond: No. Has it been displaced? “Bigamy” was covered twice, in sections 290 and 291. One of the terms was removed, but bigamy is still there.
[English]
The Chair: This looks like a very complex exercise, as you understand.
Since we have the benefit of the attendance of the Department of Justice, may I invite Ms. Davis-Ermuth to come to the table? I may have a question for her to make sure that everything is in sync with the writing of the code as it stands.
Good morning, Ms. Davis-Ermuth. I could repeat my question.
Shannon Davis-Ermuth, Senior Counsel, Department of Justice Canada: Good morning. I did hear it, thank you.
As Senator Dalphond has explained, this is in conformity with the code. Any of the offences that were removed, such as the two instances of bigamy in sections 290 and 291 in the previous version, were removed because sections that contained the definition of offences were included in the list.
It would have been a bit confusing, so what remains is simply the offence itself as opposed to the definition.
The Chair: If there are no further questions of the witness, I will call the vote on the amendment to Bill C-75 in clause 301 at pages 126 and 127.
Is it the will of this committee to adopt the text as adjusted and introduced by the Honourable Senator McIntyre?
Hon. Senators: Agreed.
The Chair: Agreed.
Is clause 196.1, as amended, carried?
Hon. Senators: Agreed.
The Chair: Thank you, honourable senators. That deals with this pending issue.
We also stood over another section of the bill, which is clause 240. You will remember that we had some discussion in relation to that clause. We are in the process now of dealing with it. I understand there is a copy of the amendment.
I will identify the amendment by its code, so that everyone has it on hand. This amendment, introduced by Senator Dalphond, is identified as PJD-240.92-93.
Would you introduce the amendment, Senator Dalphond? If you don’t have it, raise your hand and we will make sure it’s circulated.
Senator Sinclair: I am sure that somewhere in here I have it.
The Chair: It doesn’t hurt to have an additional copy.
Senator McIntyre: Chair, I believe it was attached to my amendment.
The Chair: It is attached to the stack of amendments that you received from Senator McIntyre.
Everybody has it now. Senator Sinclair, do you have it?
Senator Sinclair: I have it now.
The Chair: Senator Carignan, do you have it also?
[Translation]
You may continue, Senator Dalphond.
Senator Dalphond: For this one, I ask that you be patient, as it is a bit longer. It will be similar to what I read already for a similar provision at a previous meeting.
It is proposed:
That Bill C-75 be amended in clause 240,
(a) on page 92, by replacing line 34 with the following:
“of a judge and jury. If you elect to be tried by a judge without a jury or by a court composed of a judge and jury or if you are deemed to have elected to be tried by a court composed of a judge and jury, you will have a preliminary inquiry only if you or the prosecutor—or both—request one and that request is authorized by the justice. How do you elect to be tried?”; and
(b) on page 93, by adding the following after line 4:
“(3.1) If an accused referred to in subsection (2.1) elects to be tried by a judge without a jury or by a court composed of a judge and jury, if an accused does not elect when put to the election or is deemed under paragraph 565(1)(a) to have elected to be tried by a court composed of a judge and jury, or if an accused is charged with an offence listed in section 469 that is not punishable by imprisonment for life, the justice shall, on the joint request of the accused and the prosecutor that is made at that time or within the period fixed by rules of the court made under section 482 or 482.1—or, if there are no such rules, by the justice—hold a preliminary inquiry into the charge, if the justice is satisfied that appropriate measures have been taken to mitigate the impacts on any witness likely to provide evidence at the inquiry, including the complainant.
(3.2) If an accused referred to in subsection (2.1) elects to be tried by a judge without a jury or by a court composed of a judge and jury, if an accused does not elect when put to the election or is deemed under paragraph 565(1)(a) to have elected to be tried by a court composed of a judge and jury, or if an accused is charged with an offence listed in section 469 that is not punishable by imprisonment for life, the justice may, subject to section 577, on the request of the accused or the prosecutor that is made at that time or within the period fixed by rules of the court made under section 482 or 482.1—or, if there are no such rules, by the justice—hold a preliminary inquiry into the charge, if the justice is satisfied that it is in the best interests of the administration of justice to hold one and that appropriate measures have been taken to mitigate the impacts on any witness likely to provide evidence at the inquiry, including the complainant.”.
The Chair: Thank you, Senator. Are there any explanations?
Senator Dalphond: This is a mirror-image provision of the one we passed on all the amendments to the Criminal Code to make it possible, with legal authorization, to hold a preliminary inquiry upon request, in some cases, either with the consent of the Crown and the accused, or upon the request of one of the parties, under condition that measures be taken in all cases for the effects of the appearance of witnesses, including the complainant, to be kept at minimum. The mirror-image provision only applies to the Nunavut territory. However, for a reason unknown to me, the Criminal Code is written in such a way that Canada as a whole, except for Nunavut, has one provision, while Nunavut has a special provision. So the same terminology must be used for Nunavut as what is used for the rest of Canada.
[English]
The Chair: Are there any questions or comments on the proposed amendment? It seems to be clear.
Is it agreed that the amendment introduced by the Honourable Senator Dalphond will carry?
Hon. Senators: Agreed.
The Chair: Is clause 240, as amended, carried?
Some Hon. Senators: Agreed.
Senator Batters: On division.
The Chair: On division. Thank you, honourable senators.
I will call clause 401 again. Senator Sinclair, have you received the amendment?
Senator Sinclair: We have received both the French and English versions. I think they have been distributed now. It is No. MS-401. Does everybody have it?
The Chair: I will make sure it is being circulated.
[Translation]
It is under code MS-401.
[English]
Senator Sinclair: You can turn to page 187 of the bill. I will read the amendment.
I advise you ahead of time that this amendment is intended to strike out subparagraph (4) and the consequential amendment that would follow. I move:
That Bill C-75 be amended in clause 401, on page 187,
(a) by replacing line 15 with the following:
“401(1) subsections (2) and (3) apply in Bill C-45, in —”; and
(b) by deleting lines 27 to 36.
The Chair: Is there an explanation for the record?
Senator Sinclair: It’s a consequential amendment based upon the earlier adoption of the provision relating to the inclusion of the Cannabis Act. I forget which section it was included in, but we amended it earlier. I raised at the time that we would have to consider a consequential amendment and this was it, but we didn’t have the document.
I had suggested yesterday that all we needed to do was approve 401. Wiser heads have prevailed, including yours, chair, to advise me that I actually needed to draft an amendment to the bill. We did that, and this amendment is to bring this provision in line with the earlier amendment that we made to the bill.
The Chair: Thank you much, senator.
Are there any questions or comments on the proposed amendment by Senator Sinclair?
Shall the amendment, as introduced by Senator Sinclair to clause 401, carry?
Some Hon. Senators: Agreed.
Senator Batters: On division.
The Chair: On division.
Shall clause 401, as amended, carry?
Some Hon. Senators: Agreed.
Senator Batters: On division.
The Chair: Thank you, honourable senators.
I am looking at everything I have to deal with before calling the title of the act. I understand that Senator Dyck, after consultation, would suggest a renumbering to be sure that we remain in sync with the preceding sections of the Criminal Code.
If I understand correctly, it’s essentially to change the number from 217.22 to 217.201. That is essentially the amendment, Senator Dyck. I inform you that I could not carry it through the mandate given to the Law Clerk and Parliamentary Council to make the technical, numerical and typographical changes. I will ask the committee later to provide that authorization.
I invite Senator Dyck to propose the amendment so that the numbering can be essentially in sync with what the legal advisers have suggested be done.
Senator Dyck: I move:
That Bill C-75 be amended on page 123, by adding after line 9 the following new clause:
“293.1 The Act is amended by adding the following after section 718.2:
718.201 A court that imposes a sentence in respect of an offence that involved the abuse of an intimate partner shall consider the increased vulnerability of female persons who are victims, giving particular attention to the circumstances of Aboriginal female victims.”.
The Chair: Essentially, honourable senators, it is to change the previous number 217.22 to number 217.201. It is essentially to put it above the title “organizations” in the code.
You will remember I raised it myself because it’s not dealing with organizations. I could not take it upon myself, under the instruction I will request from you, to do the renumbering.
We are in the Criminal Code again and clarity, of course, is essential.
Shall the proposed amendment changes by Senator Dyck carry?
Some Hon. Senators: Agreed.
Senator Batters: On division.
The Chair: On division.
Shall clause 293.1, as amended, carry?
Some Hon. Senators: Agreed.
Senator Batters: On division.
The Chair: On division.
Thank you, honourable senators. That completes the study of all the clauses in Bill C-75.
I am now in a position to call the title. Shall the title carry?
Hon. Senators: Agreed.
The Chair: Shall the bill carry?
Senator Batters: On division.
The Chair: On division.
Is it agreed that the Law Clerk and Parliamentary Counsel be authorized to make technical, numerical and typographical changes and adjustments to the amendments adopted by the committee?
Hon. Senators: Agreed.
The Chair: Thank you, honourable senators.
Does the committee wish to consider appending observations to the report?
That is the usual question, but I understand a certain number of observations are being put forward by honourable senators. Honourable Senator Dupuis, Honourable Senator Lankin and Honourable Senator Dalphond have observations.
My first point is to make sure that all honourable senators have a copy of the observations at hand. The observations have been circulated. They are essentially in the document that I will be exhibiting. It has been circulated. It was prepared for study by this committee by our assistants from the Library of Parliament. We appreciate so much their work.
You will find the observations at the end of the recital of various points that were studied and debated at the committee.
The first one is by Senator Dupuis. Senator Dupuis, would you like to introduce your observation?
[Translation]
Senator Dupuis: Following testimony we have heard from various groups—both groups trying to help women who are victims of violence—
[English]
The Chair: May I ask you to read it? After that you could give an explanation.
[Translation]
Senator Dupuis: Here is the observation I am proposing.
The committee is concerned that the use of neutral legal language in Bill C-75 means that the systemic discrimination against women, found throughout the criminal justice system, will go unnoticed. Women account for the vast majority of victims of criminal assault, whether of a sexual nature or not, and they do not receive the services they need to ensure they can report their attacker. Women are left to their own devices when they are in what could be an extremely vulnerable situation, including while: 1) reporting the incident to the police; 2) going through the investigation; 3) preparing for the trial, in the very rare situations where the case goes to trial; 4) getting on with their lives when the case does not go to trial; 5) going through the trial; 6) navigating the sentencing, acquittal or stay of proceedings, in most cases; and 7) getting on with their lives in this last case.
A number of witnesses raised this point. In his letter of May 10, 2019, addressed to the chair of the committee, the Minister of Justice acknowledged as much, and provided the data to support it. In his letter, the Minister also confirmed that his department used the data to carry out gender-based analysis plus when Bill C-75 was being drafted. Given the situation, the committee is of the opinion that the Department of Justice must immediately undertake to make the necessary amendments to the Criminal Code in order to incorporate the findings for these data, which are supported by the experiences shared by the women’s groups that appeared before the committee, that is, the intersectionality of gender-based violence against women.
The explanation is fairly short. I feel that it is pretty clear there are concerns, following testimony we have heard, not only from groups that help women who are victims of assault, sexual or not, but also police officers we have heard from and those who deal with victims of criminal assault. We have also received, following requests submitted to the Department of Justice, data that confirm this, and I think it is sufficiently worrisome to justify an observation as part of the committee’s report on the study of Bill C-75.
[English]
The Chair: Are there any comments or questions for the Honourable Senator Dupuis?
[Translation]
Senator Pratte: I would just suggest a small clarification. In the last sentence of the first paragraph, it says: “Women are left to their own devices when they are in what could be an extremely vulnerable situation”. Should it rather say, “They are often left to their own devices...”, as there are still cases where efforts have been made or where women were not left to their own devices? But I leave this to the committee’s discretion. That is a clarification I would add.
Senator Dupuis: I would be prepared to include that.
The Chair: So we are integrating into the English text, “women are often left to their own devices”, and into the French text, “elles sont souvent laissées à elles-mêmes”. Any other comments or suggestions?
[English]
Is it agreed, honourable senators, that we append those observations to the report?
Hon. Senators: Agreed.
The Chair: I will then call for the observations that have been prepared by Honourable Senator Lankin.
Senator Lankin, perhaps you could read them so that we could proceed thereafter with an exchange of views.
Senator Lankin: Mr. Chair. I have three observations. I will deal with them, with your concurrence, one by one. I will read it in, do the explanation, and then go on to my next observation.
The first one follows on Senator Dupuis’ observation. It moves from a specific to a broader observation:
Parliament has a duty to ensure the justice system protects women. The committee heard evidence of how the criminal justice system is failing all women, with differential impacts on women of colour, newcomer women and Indigenous women, and calls on the Minister of Justice to investigate broader, systemic reforms that might strengthen the delivery of justice for women. With regard to cases of violence against women, and in particular Indigenous women, witnesses suggested an open and ongoing examination of certain key issues, such as: dual-charging in cases of Intimate Partner Violence; establishing civilian oversight of police investigations into cases of sexual assault; criminal law reform to bring increased clarity to provisions on sexual assault; implementing a practice of conducting and publishing Indigenous Women Impact Analysis on all criminal justice reforms Bills; and, exploring solutions to the devastating frequency with which Crown prosecutors elect to not proceed with charges or stay charges in cases of male violence against women, whether it be sexual assault, intimate partner violence or sexual exploitation. The committee also notes that the report of the National Inquiry into Missing and Murdered Indigenous Women and Girls will be released in June 2019 and recommends additionally, that the findings of this report be studied along with the issues raised above.
That is the end of that observation.
I have a brief explanation. I know that all members of this committee heard the same testimony that I did and that all members hold these issues to be of high concern for us and in the administration of justice.
I thank the Minister of Justice and the department for the statistics they supplied in response to the questions that I asked. I found them incredibly helpful. They underscore the importance of the broad issues.
Just to put on the record, women who are young, Indigenous, single, homosexual or bisexual and those with mental health issues are at higher risk of sexual assault. Seventy-nine per cent of intimate partner victims are women. Indigenous women are overrepresented in the criminal justice system and make up 43 per cent of female admissions to provincial and territorial institutions or sentenced custody. Dual charging is a reality for many women who are victims of intimate partner violence, and policies on primary aggressors need to be further developed.
I would also note the testimony of Marion Buller, Chief Commissioner of the National Inquiry into Missing and Murdered Indigenous Women and Girls, who made clear their view on a number of issues that the decisions of the Supreme Court of Canada in Ipeelee and in making Gladue reports need to be enshrined within the code itself in an appropriate manner. What she said to us and what the victims have said to that commission is that we need to change the laws. More needs to be done.
On my examination of the range of issues, not all of them are appropriate for amendment to the particular bill, given the broader scope. That’s why I chose to come forward with an observation. I personally believe, and others have expressed it to me, how important it is that we as the Senate, on the record, call on the Minister of Justice while other reforms are being considered to conduct further analysis required because there are gaps in our knowledge, and to take actions on things like the inquiry report that will be coming out and the Supreme Court decisions I have referenced.
The Chair: I will stop your presentation at this stage so that we can deal with this one. Then we’ll move on to the second one.
Senator Dyck: I appreciate what you’ve done. The only thing I might add to it is that we just had the Supreme Court decision in R. v.Barton, which underscores everything you have just said, particularly with regard to Indigenous women.
The Chair: Would you agree, Senator Lankin, to add that element of additional information since it is very recent, in fact last week?
Senator Lankin: Yes. I have no objection to that. We don’t mention Gladue, Ipeelee or others. It was in the explanation. I don’t know that it needs to be in the observation. It is a further and strengthening rationale for why the observation is required, if that’s satisfactory. I don’t think there needs to be an amendment.
The Chair: There is no need for such an amendment but, as you say, it strengthens the elements of information that you outline in your presentation.
Are there any other comments, honourable senators?
Senator Sinclair: I am a little concerned that we’re not necessarily saying the same thing but we’re saying similar things in different ways.
I am concerned about the final product and what the final product might look like or how it might read. I am wondering if there is a way for us to merge these documents.
The Chair: You can authorize steering, with the concurrence of the author of the proposal, so that we could merge, if I can use that word, the elements of essential information so that we have text that seems not to be repetitive in different ways but is substantially covering what Senator Dupuis and Senator Lankin have said.
Maybe that is a way for us to invite those senators to meet after this meeting to see how that could be done, if both of you agree to do that.
Senator Dyck: I would then ask that there be reference made to R. v. Barton because you’re referencing the national inquiry report, which is coming out next week. I would think that would strengthen it considerably.
[Translation]
Senator Dupuis: I feel that there is a way to integrate both texts while respecting the wording of Senator Lankin’s and my texts. In other words, we don’t want to rewrite a text, but we could see how those two texts could be merged into a single one. I think that’s possible. Does Senator Lankin agree with us doing this?
[English]
The Chair: Do you agree, Senator Lankin, to the proposal that Senator Dupuis has suggested that you meet after this meeting?
We accept the text with the proviso that there will be an initiative taken to make sure both texts are merged so we have only one recital on the objective of the perspective of treatment of women in the criminal justice system. That’s essentially the subject of those two proposals.
Senator Lankin: Yes, I agree. Senator Dyck, if the committee agrees, we can explicitly make reference where we talk about the inquiry report and calling on the Minister of Justice to study those, along with the findings of Gladue, Ipeelee and Barton.
[Translation]
Senator Dupuis: Wouldn’t our Library of Parliament analysts be in the best position to do this work?
[English]
The Chair: I suggest the proper procedure would be to ask the analysts to take the two texts and submit them to you to make sure that you’re satisfied with them. It is not that I have a veto on this, but the text could be submitted to me for the arbitrator and impartiality as the chair, to make sure that both objectives are served, that you are satisfied with it and that it is within what this committee would accept, of course.
[Translation]
Senator Dupuis: My concern is that we are trying to make somewhat general observations on a specific ruling. Can’t we ask the analysts to find wording that would rather bring up certain rulings that have been made, without naming specific rulings? Right now, we are removing other rulings and creating the possibility of choosing one over another.
[English]
The Chair: I will make sure that there are references to court cases in general, the recent court cases, so everyone is able to look into them.
If this committee allows me, once this text is not vetted but approved by both of you, I will look into it to make sure it reflects what was originally accepted by this committee.
Is it agreed, honourable senators?
Hon. Senators: Agreed.
The Chair: What is the second proposal of Senator Lankin?
Senator Lankin: I welcome your work on that, chair. It would be very helpful.
The second observation one is with respect to unintended risk of deportation for non-citizens that arises as a result of the hybridization of offences and the change in sentencing of summary offences.
The Chair: Would you read the text?
Senator Lankin: I am going to:
The committee notes that increasing maximum sentences for summary conviction offences may expose permanent residents and foreign nationals to deportation proceedings under the Immigration and Refugee Protection Act, since they can be deported without a right of appeal before the Immigration Appeal Division if convicted of an offence and sentenced to a term of imprisonment of six months or more. This increase in the maximum sentence for summary conviction offences should not reflect an intent to treat these offences more punitively, nor should it reflect an intent for offenders to be “doubly-punished” by being deported after serving their sentence. The unintended consequences of increasing the number of individuals facing deportation would contravene the spirit of Bill C-75 and likely further aggravate court delays. The committee calls on the Government of Canada to reinstate the Law Reform Commission of Canada to undertake a review of the Immigration and Refugee Protection Act and how increased sentences for summary convictions relate to it.
That is the end of the observation.
In terms of an explanation we heard from witnesses with respect to the particular bill but, chair, I want to reference comments that you made. I’ll give examples with respect to other pieces of legislation involving the Criminal Code, sentencing, the relationship with IRPA, the impact on permanent residents and foreign nationals, and potential deportation.
This issue has been percolating in terms of our understanding. We have an opportunity today to append an observation that looks at a broader picture.
Let me give you a hypothetical scenario of an 18-year-old permanent resident in Canada whose parents immigrated four years ago. The 18-year-old is still awaiting citizenship and gets convicted of a summary conviction under section 334 of the Criminal Code, theft under $5,000. The sentence for this summary offence is currently six months. There would be no implications for IRPA and for the citizenship status determination in that case.
Under Bill C-75 the sentence for this crime will be increased to a potential maximum of two years. The accused is convicted of the crime in this scenario and the judge gives the accused a sentence of seven months in prison. Because the sentence is over six months, the accused will also be deported to a country where he or she has no family contacts and very little support. As a result, this person will face greater punishment than a Canadian citizen receiving the same sentence.
I want to be clear that I think these are potential unintended consequences. Therefore, again, not an amendment that I seek to make to the bill. It’s an observation. I believe the Minister of Justice was very clear. We should all accept that there are sentencing principles in place. Judges will look to the circumstances of the individual, the crime, the severity and the issue of double punishment.
It’s not that I don’t believe these things would be taken into consideration in the normal course as they are today, but I do believe two things.
First, when you change laws, the judiciary takes account of what the reasons were behind the change in laws and what that means in terms of considerations. An observation to this effect strengthens the minister’s assertion that there is no intention for this to have this kind of consequence with respect to people awaiting citizenship and that the Senate of Canada recognizes and affirms that.
Second, a number of scenarios have arisen. If I may, the chair made reference to Senator Jaffer’s concerns that have been raised in the past with respect to Bill C-46, which is one that I observed, related to conveyances and the consequential amendments to other acts. This has to do with impaired driving, change in sentencing, a range of things and its relationship to IRPA.
Another example is Bill C-45 and the Cannabis Act. Again these are changes in sentences of a maximum of 10 or 14 years. They’re slightly different from what we are dealing with here but they cover the same area.
Have we looked at IRPA as a Parliament in a way to ensure that we understand the connection as we’re making these changes to the Criminal Code? That’s the purpose to bring forward this observation. It is more than asking the minister to look at the Criminal Code. I think it is the relationship with IRPA. There are other aspects beyond what I am raising that could form part of the review and thus the suggestion for reinvoking something like the Law Reform Commission to take an overarching view.
Senator Dalphond: I will support the observation.
I will also add that I have an observation of a more general nature to instruct attorneys not to see the increase in sentence as a way to ask for more than what they were asking before. I think that will tie in very nicely. This is certainly a specific example of unintended consequences that we don’t want.
Senator Gold: I totally support the need to take a look at the act. My only reservation is about the recommendation of the Law Reform Commission.
I support the Law Reform Commission of Canada. I bemoan its disappearance. I did studies for it when I was a law professor. I used them in my classes. It’s a separate issue from whether the act should be studied. It should, whether it’s by government, a parliamentary committee, a Senate committee or a study.
I might suggest that we don’t muddy the waters with something that is a stand-alone issue and one that I would frankly love to see happen. I am not sure it’s needed to make the point that is a really important one in the observation.
Senator McIntyre: Senator Lankin, as we know, Bill C-75 is increasing maximum sentences for summary convictions from six months to a year less a day. In your observation you speak of how summary conviction offences may expose permanent residents and foreign nationals. Later you add that they can be deported without a right of appeal before the Immigration Appeal Division if convicted of an offence and sentenced to a term of imprisonment of six months or more.
Are you talking about offences under two years, or are you talking about more serious indictable offences such as homicide and first and second degree murder?
Senator Lankin: I am talking about the less serious crimes. The summary offences are being hybridized where the sentences are less than two years. I point out that previous committee observations on Bill C-46 and Bill C-45 were with respect to more serious criminal offences that carry a maximum sentence of 10 years and 14 years.
I point that out in explanation. This issue has been raised on a number of occasions, but my observation relating to this bill is relating to less than a two-year sentence.
Senator McIntyre: Thank you for the clarification.
[Translation]
Senator Pratte: I support Senator Gold’s comment on the Law Reform Commission. I am very favourable to that commission being reinstated. I think that a number of arguments are favourable to that, but if the committee would like to have a say on that, it should do so separately, if it has not been done already.
[English]
The Chair: That is why I wanted to jump in on this issue.
I want to remind honourable senators of our report Delaying Justice is Denying Justice, in which we noted that two initial projects of the Law Reform Commission of Canada when it was created in 1971 were to revise the Criminal Code and the Canada Evidence Act. These revisions were never completed. The committee recommends that the Law Reform Commission be established and given a priority mandate to modernize the Criminal Code.
We adopted that as a committee.
Senator Pratte: Would there be a way, Mr. Chair, to rewrite this part of the bill to refer to our previous recommendation?
[Translation]
We should not give the impression that we want to reinstate the commission for that reason alone.
[English]
The Chair: We could certainly refer to our previous report. This committee has already recommended that a revision of the Criminal Code and the Canada Evidence Act be initiated.
Senator Pratte: This would be an additional reason.
The Chair: To that mandate could be added the review of the Immigration and Refugee Protection Act. Then that links this recommendation to our previous recommendation which was adopted unanimously, as you know, by the committee.
Senator Gold: That is elegant and appropriate, just so long as it doesn’t tie the review of the IRPA to the government’s decision to establish a Law Reform Commission. If they decide for whatever reason not to do it, somebody should still do it.
The Chair: It doesn’t mean that the review of the act is not essential.
Senator Gold: Yes.
The Chair: You have to distinguish the revision and who is in charge of the revision. Those are two different objectives.
[Translation]
Senator Carignan: I agree with my colleagues regarding the Law Reform Commission. In addition, one of our reports recommended to reinstate the Law Reform Commission, so it is not a bad idea to introduce it. However, I don’t think it is appropriate to use an approach where it seems that the commission is to be reinstated only to deal with this issue. I agree with the compromise between the two—making a connection with the report to add a mandate. I feel that creates continuity in reports. There is some logic to it.
Senator Dupuis: I wanted to make the same reference as you, Mr. Chair, to the report produced by the committee in 2017. I would rather we reuse the exact terms from that report.
[English]
The Chair: We will check the report. What I have here is the quotes and the comma. It should normally be the text.
I don’t have the text of the report at hand, but I would revise the text to be sure this is linked, as Senator Carignan mentioned, to the exact wording of it.
[Translation]
Senator Dupuis: We want to refer to it, and we sometimes indicate that in the committee reports. We come back to or insist on a recommendation we have already made in a particular document.
I have a more specific question for Senator Lankin. At this time, do you agree to remove the last sentence of your second observation? We will reintroduce it differently while mentioning the report the Standing Senate Committee on Legal and Constitutional Affairs has already produced.
[English]
Senator Lankin: Yes, I was asking if I may make a suggestion of an amendment to the text that I authored. It’s right along the lines that everybody has suggested. Sometimes you can’t see behind someone’s thinking. I was aware of the report because the chair drew it to my attention.
Is Justice Delayed is Justice Denied the correct title?
The Chair: Yes, delaying justice is denying justice in a nutshell.
Senator Lankin: I would recommend the last sentence of the text. As I read it into the record, it makes reference to reinstating the Law Reform Commission. It would be amended to delete the reference of the Law Reform Commission. It would read that the committee calls on the Government of Canada to undertake a review of the Immigration and Refugee Protection Act and how increased sentences for summary convictions relate to it.
A second sentence would be added that I would leave to the analyst and the chair. The committee would note that a possible means of doing this is through a reinstatement of the Law Reform Commission of Canada. It is a recommendation, et cetera.
The Chair: It has the committee previously in its report, so that we will link it to our previous report.
[Translation]
Senator Dupuis: Senator Lankin, I am trying to understand the connection you are making on the fifth line of your second observation between the increase of maximum sentences for summary convictions and the following sentence:
[English]
The unintended consequence of increasing the number of individual facing deportation would contravene the spirit.
[Translation]
In other words, I understand the first sentence, which is very clear. My question is about the second sentence. Why are you making a connection with the word “increasing”? That seems to me to be a theoretical issue. I didn’t think that connection had to be made. I felt that the first sentence was self-contained:
[English]
It should not reflect on intent to treat those offences more punitively.
[Translation]
I think this is very clear in itself. My question is the following: What connection are you making between this statement and the expression “unintended consequence of increasing”?
[English]
Senator Lankin: Let me try to answer, as opposed to your proposing what the answers might be. If it doesn’t go far enough, then we could have a helpful dialogue.
I recognize from your question that it’s probably not clear enough. The spirit of Bill C-75 is in part around more effective and efficient use of resources. In fact, some of the issues being raised could run counter to that in creating more issues of backlog, delays and whatever because of the complication of this issue.
If people don’t think that sentence is needed, I am actually okay to drop it. It is additional. It may be superfluous. I don’t think it detracts. I am okay if it is deleted if that makes all members comfortable.
The Chair: Could you identify the sentence that you would suggest removing?
Senator Lankin: The second last sentence would be that the unintended consequence of increasing the number of individuals facing deportation would contravene the spirit of Bill C-75 and likely further aggravate court delays.
In my view that sentence could be deleted. It doesn’t take away from the impact of the observation. Senator Dupuis, is that satisfactory?
Senator Dalphond: Keep it.
[Translation]
Senator Dupuis: We can leave it. You explained your reasoning, and I agree to accept it. I am not necessarily asking that it be removed. I just wanted to understand the connection you were making between the two sentences.
[English]
The Chair: There is no need to remove that because it strengthened the argument in a way. As you said, the unintended consequence will run contrary to what the overall objective of Bill C-75, which is essentially to address the issue of court delays.
I gave my opinion but I don’t think, Senator Lankin, that it really overloads the meaning of it.
Senator Lankin: Fine.
Senator Sinclair: It seems like an age ago that I put up my hand because we have jumped so much territory. I think my issue has been raised and addressed, so thank you. I’ll pass.
The Chair: You see sometimes it’s better.
Senator Pratte: Did you have an amendment to the bill?
Senator Sinclair: I didn’t want to change anything.
The Chair: Sometimes you win the game by not playing, you know.
Senator Sinclair: I was going to suggest not to change. If there is an acceptance to leave it, that’s fine.
The Chair: Thank you, senator.
Comments were made at the table in relation to the amendment to the Law Reform Commission in the context that the previous report of this committee will be changed.
Is it agreed, honourable senators, that those observations will be appended to the report of this committee?
Hon. Senators: Agreed.
The Chair: You have a third observation.
Senator Lankin: Thank you, Mr. Chair. I will read it into the record.
Your committee heard from witnesses who expressed significant disappoint that this Bill does not fulfill the Government’s electoral commitment to remove the minimum sentencing provisions contained within the Criminal Code. We heard from the Minister of Justice that he and his Government remain committed to this measure and that a fulsome review of the issue is nearing completion. The committee observes that the Government has had four years to bring forward amendments to the Criminal Code to fulfill the mandate given to them by Canadians and expresses regret that, to date, no legislative action has been taken.
As an explanation, Mr. Chair, I reference that there are a number of witnesses who raised this issue. They sought the committee’s response to actually amend the bill in this respect. In the committee’s overall judgment, but certainly in mine, it was not a useful way to proceed to try and enact a government mandate committed through an amendment to a bill that is narrower and more specific. This is a very broad issue.
Of course, it remains a controversial issue. Among us around this table, there are different points of view. This observation is about the government’s own commitment in an election mandate.
The minister was very genuine in his continued commitment to this mandate issue. He is new to the portfolio. The work had not been completed, and he is where he is at in terms of the timing of doing this work. If there is an opportunity to proceed with this work post election, or if a different political party government chooses to proceed with this work or not, those are the things that will unfold in the future.
I note as well that part of the rationale for my bringing this forward was that in the previous unanimous report of this committee, Delaying Justice is Denying Justice, there was a commentary on the issue of minimum sentences. The reform in the mandate has been provided to the government by Canadians.
It is unfortunate that a full term of a government on such an important mandate issue has unfolded without action being taken. Not again just in this bill but in many other circumstances we have heard from large parts of the community and not all parts of the community concerned that action hasn’t been taken. This is intended to be a pointed commentary on our disappointment and a reminder that the Senate of Canada, in its official position as reflected in the report of this committee and adopted in the Senate, believes that the government should act on this commitment.
The Chair: Thank you, senator.
Senator McIntyre: Senator Lankin, I take it that you’re referring to all mandatory minimum sentences such as first degree murder, second degree murder and terrorism offences.
Senator Lankin: I am referring to the commitment that has been made to review and to amend the mandatory minimum approach and regime currently in place within the Criminal Code.
That review may produce results that have a varied implementation. I am not defining in this observation the end result of that review, but I am expressing disappointment that the commitment made by the government has not been fulfilled.
Senator McIntyre: Your focus is more on the word review.
Senator Lankin: Yes.
Senator McIntyre: A review of the issue, not the end result.
Senator Lankin: Senator Batters is quick to say a broken promise. I have heard that from her before. Yes, I’m agreeing with you that it’s a broken promise.
May I say that the promise was to remove the minimum sentencing provisions contained within the Criminal Code? That has been a broken promise. The minister said they are doing a review. I accept that review may come forward with some nuance from the statement that was in the mandate.
That’s why I didn’t get into the specifics of what the end result would be. Am I personally interested in the end result of removing the regime of minimum sentences? Yes. I understand you may not be or we may be in agreement on some or not all. That is the process that will unfold in the democratic consideration of this point.
Senator McIntyre: In other words, you’re not calling upon the government to remove the mandatory minimum sentences. You’re calling upon them to review the whole framework.
Senator Lankin: It isn’t even any direct call on them. It is an observation. They have had four years to bring forward whatever appropriate amendments they believe would fulfill the mandate given to them in the election. We observe that they haven’t done it. We express regret that to date they have taken no legislative action.
The Chair: I want to stress that we’re referring to the mandate letter of the Minister of Justice and Attorney General. Instead of electoral commitment, which makes good speech at third reading, should we not in fact be referring to the letter of mandate of the Minister of Justice because that is clearer, in my opinion, as a broken or an undelivered commitment. I put that to you as an element.
Senator Lankin: I think that actually improves it, but I think the whole committee that will determine it.
The Chair: The other thing is our recommendation 8 in Delaying Justice is Denying Justice:
The committee recommends that the Minister of Justice undertake a thorough review of existing minimum sentences in order to:
ensure a reasonable, evidence-based approach to when they are appropriate; and
consider whether persons with mental health issues should be considered for alternative sentencing options or treatment when faced with mandatory minimum sentences.
Maybe it would be one way to refer to the letter to the minister and to the committee recommendation.
Senator Lankin: I think that improves it.
The Chair: I am just suggesting it. I am not proposing it.
Senator Batters: Senator Lankin could certainly include both the electoral promise and the mandate letter because I think both are very germane to this issue. The mandate letter obviously arises out of the platform.
The Chair: The mandate letter is an important element. We are the Legal and Constitutional Affairs Committee. When there is such a mandate, I think we should refer to it.
[Translation]
Senator Carignan: Are we regretting or noting?
The Chair: We note and then we can regret it.
Senator Carignan: We have different points of view. I am not a fan of minimum sentences. In some cases, that works. We saw it with impaired driving, among other cases. I am not sure it will work in other cases. I propose a consensus: noting that it has not been done instead of regretting it.
Senator Dupuis: The sentences that states as follows:
The committee observes that the government has had four years to bring forward amendments and that, to date, no legislative action has been taken.
We can keep the sentence as it stands and say that we’re only observing that the government has had four years to bring forward amendments to the Criminal Code and that, to date, no legislation has been passed.
[English]
The Chair: I think referring to recommendation No. 8 of this committee is an important element. Besides the commitment of the government and the instructions given to the Minister of Justice, there is the position of this committee on mandatory minimum sentences that meet, to a point, Senator Carignan’s comments in relation to it.
I would suggest that we come back to recommendation No. 8. I am not here to direct the committee, but it is in synch with what I call the institutional memory of this committee when we approach the issue of the Criminal Code that we maintain continuity in terms of our way to appraise what should be undertaken. I just put it on the table. I am not here to make a proposal, of course.
With the help of the library we could have in the second line the government electoral commitment, as Senator Batters has mentioned; the mandate letter of the Minister of Justice; and what this committee has recommended as No. 8 in its report. In my opinion, this would give some basis and not essentially diminish in whatsoever way the importance of doing that kind of review.
Is it agreed, honourable senators?
Senator Lankin: I have a response to that, but Senator Sinclair has been waiting so I would like to hold my response until he gets a chance to speak.
Senator Sinclair: I also appreciate that we are running short on time.
I don’t want to belabour the point, but I am not able to recall an actual commitment by the government during the election to remove all minimum sentencing provisions in the Criminal Code.
It seems like a foolish commitment, actually, because certain provisions have had minimum sentences going back decades. The drunk driving provision is one example of that, which Senator Carignan talked about. Other provisions have minimum sentences as well. They have been there for a long time.
I don’t know that it’s accurate, and I don’t want us to be seen as saying or suggesting that all minimum sentences should be removed because I don’t agree with that, quite frankly.
I would be agreeable, along the lines of the chair’s suggestion, if the second line were to be addressed somewhat by adding a reference to the mandate letters. If there were more information about the actual electoral commitment provided to us, then we could focus on that or simply refer to the government’s electoral commitment to review or to address the minimum sentencing provisions because those are reflected in the mandate letters.
As I said, I don’t recall there being a commitment to remove all minimum sentences. I don’t think I would be prepared to sign on to a document that suggests we are supporting the removal of all minimum sentences.
The Chair: That’s why I suggested the wording of our recommendation No. 8.
Senator Lankin: I agree with you, Senator Sinclair.
Senator Dalphond: I was the next one.
The Chair: You were the next one, but it was more a direct dialogue between the two of us.
Senator Dalphond: Yes, yes, but we follow too. I am sorry to interrupt, but we are very short on time. I had written my paper that I think the word “review” should be written instead of “remove.”
The rest of the arguments were already ably made by my colleagues, so I have nothing else to say.
The Chair: It is a concurrence.
Senator Dalphond: Absolutely.
Senator Lankin: You think the word “review” should what?
Senator Dalphond: To review.
Senator Batters: On the word “regret,” I agree with my colleague, Senator Carignan, about that. It doesn’t just talk about the observation. It says that the committee observes that the government has had four years. All of that is fine, but then it expresses regret that to date no legislative action has been taken.
It means that the committee is expressing regret. Some people on this committee may have that regret, but I personally do not because I think there are many mandatory minimums in place right now that should stay in place.
I agree that maybe there is a slightly softer word we could use, other than regret, so that we could all have consensus on this particular provision. Senator Lankin, is there anything you could suggest on that?
The Chair: Express concern.
Senator Lankin: May I make just a framework suggestion of how we approach this in line with the chair’s comments and the direction of the analysts in terms of preparing alternative wording. I believe that we should make reference to the electoral commitment, as Senator Sinclair said, with respect to as opposed to the words removing the minimum. With respect to minimum sentencing provisions is reflected in the mandate letter to the minister. I think that’s the appropriate place to bring that reference in, Mr. Chair, as you have wisely recommended.
I would suggest that the reference to this committee’s report and the Senate’s adoption of this committee’s report and recommendation in section 8 actually come after we observe that the Minister of Justice remains committed to this measure and that a fulsome review is nearing completion.
Then, when we deal with the committee observing that the government has had four years, I would preface it with a reference that we also note in this committee’s report and the Senate report the reference in recommendation No. 8 and put the wording in there.
Then the last sentence would be that they have had four years to bring forward amendments to the Criminal Code to fulfill this mandate given to them by Canadians, and to date no legislative action has been taken. That deletes the words “expresses regret.”
By adding the mandate letter and by adding the committee reference it is superfluous. I agree that it kind of polarizes when we don’t even know whether or not we’re in agreement on all these things.
The Chair: Does it satisfy, Senator Batters?
Senator Batters: Yes.
The Chair: Thank you.
[Translation]
Senator Carignan: I was rereading the mandate letter. I haven’t received the election platform yet. I paid less attention to this platform than in 2015. The Prime Minister didn’t want the senators to get involved in the election campaign.
The mandate letter doesn’t clearly state that minimum sentences should be abolished. It states the following:
Conduct a review of the changes in our criminal justice system and sentencing reforms over the past decade with a mandate to assess the changes, ensure that we are increasing the safety of our communities ...
The wording on the abolition of minimum sentences is less binding.
[English]
The Chair: I think at this stage I can draw the line. The analysts and I have taken notes. I see consensus around the table to have wording that is reflective of those nuances. We are not pronouncing per se on minimum sentences. We are essentially reviewing those sentences in the context of the mandate letter and in the context of the recommendations of this committee, which I think were wise at that time.
You will remember when we had that discussion around the table, which I think was balanced, nuanced and took into consideration all aspects of an issue that is quite complex. There is no doubt about it.
With that, honourable senator, is it agreed that the analyst will review the text and make sure that it is in sync with what has been put forward as views around the table? I will circulate with the two deputy chairs and Senator Lankin to be sure this is satisfactory.
With that, is it agreed honourable senators?
Hon. Senators: Agreed.
The Chair: Thank you. Then we move with Senator Dalphond’s observation.
Senator Dalphond, would you care to read those observations so that we can move on?
Senator Dalphond: I have three short ones. The first one is about increased penalties for summary conviction offences:
With the maximum sentence increasing from six months to two years less a day, regardless of the gravity of the offence, some witnesses said there was a risk that even less serious offences could be punished more severely.
However, the Committee understands that the increase in the maximum sentences of imprisonment is not meant to change the current sentencing framework, nor does it affect the court’s ability to impose a sentence that is proportionate to the gravity of the offence and the degree of responsibility of the offender.
The Committee therefore notes that the increase in the maximum prison term is not an invitation for prosecutors and judges to considering inflating the sentences currently imposed. Accordingly, the Committee calls on the government to instruct government lawyers about this important clarification and to inform provincial and territorial governments.
The Chair: Please provide an explanation.
Senator Dalphond: You will remember that the minister, when he testified — and some of the witnesses — said it was not the intent to increase the fare, as we say sometimes in the court system.
This will tie in very well with the observation proposed by Senator Lankin. Her observation offers an illustration of the reality described in mine. Here, what I want to say is that the committee advises the government to instruct prosecutors to act accordingly, to make sure that nobody sees an opening to say, “Let’s revise the sentencing scale.”
The Chair: Are there any questions or comments?
Senator Batters: I am not sure about this one. Senator Dalphond, near the end you are asking to call on the government to instruct government lawyers. Do you mean prosecutors?
Senator Dalphond: Yes, to instruct government lawyers. You could say prosecutors because that is the word on the second line, if you want, yes.
Senator Batters: Yes, I think it would be prosecutors rather than government lawyers. The government employs a lot of lawyers, but I think the ones you’re looking for are the ones that actually do criminal cases.
We had kind of a compressed study on this kind of bill, but I am not sure I could say that the government definitely does not want to see an increase in the maximum prison term. Maybe for some of those things they do. I am not sure we have enough evidence to be able to make an observation about that. I guess I would need to hear from the Department of Justice officials.
The Chair: Perhaps Ms. Morency would you come to the table. I didn’t see you volunteer, but I would nevertheless invite you to come to the table.
Carole Morency, Director General and Senior General Counsel, Criminal Law Policy Section, Department of Justice Canada: With a view to trying to be helpful to the committee, the first point I would remark upon is the question about government lawyers. I understood this to be as perhaps instruction or practice direction to prosecutors who would be prosecuting criminal offences. In the provinces, that would be within the provincial responsibility. In the territories, that would be Public Prosecution Service of Canada.
Second, I would agree with the comment made by Senator Dalphond that it is true the government’s position, the minister’s comments and certainly our testimony before the committee have been to underscore the intention of the proposals to hybridize what are currently straight indictable offences. This is to say that it is an attempt to find some efficiencies where procedural steps could be taken without intending to change the impact on what would be an appropriate sentence in those cases.
A straight indictable offence punishable by 10 years today, before Bill C-75, would attract a penalty of six months. It would still be deserving of a six-month penalty after hybridization but would benefit from a simpler process.
There might be room for questioning on summary conviction offences, currently punishable by a maximum of less than two years less a day. That would become two years less a day and there would be a difference. It would be something that courts would typically look at. Sometimes they talk about it as a ladder that shifts the sentencing range.
To the extent that hybridization is adopted by Parliament, if that’s the will of Parliament on Bill C-75, yes, the evidence is before the committee that it should not change. The sentencing principles remain the same. The same offence should get the same type of penalty under those circumstances.
Where you shift overall the maximum from what was currently 6, 12 or 18 months to two years less a day, the courts would then be looking at applying the same sentencing principles in all circumstances to what would be the most serious case in that new range and what would be an appropriate sentence. I think that assists the committee to assess how that might impact on that particular reform.
Senator Batters: Thanks very much, because you’ve raised a very good point that I hadn’t thought of until you said it. When it is saying the committee calls on the government to instruct, obviously it is the federal government. If it’s changed to prosecutors, the federal government only has the ability, as you pointed out, to instruct federal prosecutors.
Then the rest of the observation said that it was to inform provincial and territorial governments because they would instruct their own prosecutors. I think that it would be beneficial to include that clarification.
[Translation]
Senator Dupuis: Senator Dalphond, you referred to the minister’s letter. I was wondering whether we should include this reference to the minister’s letter. In other words, it isn’t just an observation based on our own considerations, because we had the opportunity to discuss the issue with the minister. I think that it would be useful to refer directly to the letter. We’ve noted that the increase in the sentence isn’t an invitation for prosecutors to consider inflating sentences. However, we want to link this to something. The minister gave us this important information. We want to link it to the current government’s commitment to not consider inflating sentences.
Senator Dalphond: I don’t think that it’s directly in the letter. I think that it’s in the minister’s presentation to the committee.
The Chair: I’m looking at the letter in my hands.
Senator Dalphond: I’m doing the same thing. However, I think that it was in the minister’s responses to the questions asked.
Senator Carignan: Do we need to make any observations at this time?
[English]
Senator Sinclair: As much as I love my brother, I am not sure I support the observation. I think it actually is contradictory to what the bill is trying to achieve.
The bill is trying to achieve flexibility in the approach to be taken by prosecutors and the courts to be able to sentence offenders to longer periods of time for summary conviction matters so that there is no longer a need to proceed by indictment if a prosecutor wants a sentence of 12 months or 18 months.
He can still proceed summarily. Before he couldn’t proceed summarily. He had to proceed by indictment, clogging up the system and having to go through the difficulties of it.
This observation seems to be saying not to ask for increased sentences merely because the maximum sentence for the summary conviction offence is now two years less a day, when in fact the purpose of the bill is to say that if you want a 15-month sentence or an 18-month sentence we’re now giving you the tool to do that. The observation seems to fly in the face of the legislation. I make that first observation.
The second is that I am not sure how helpful it would be to impose upon the government or suggest to the Government of Canada that you should direct its prosecutors to do it this way when almost every offence under the Criminal Code is prosecuted by a provincial prosecutor and not a federal prosecutor. The provincial prosecution services are the ones that will have to exercise that discretion. There’s no way, in an observation like this one, that we can give that direction or make the commentary that it will have an impact on provinces.
I suspect the provinces that want to proceed by indictment will proceed by indictment. If they want to proceed by summary conviction, I am sure they will proceed by summary conviction and ask for whatever sentence the prosecution services want to get. I don’t think they will listen to whatever the observation is.
I am not sure this is a particularly helpful observation in that respect. I also think it’s contradictory to the bill. I suggest that maybe we should reconsider that.
Senator Dalphond: I have no objection to withdrawing it because I think it was clear from the government’s commitment that it was not meant to change the sentencing scale and to inflate the sentences. This was said, and it’s in the minutes of this committee. I am fine with this.
If the wording is creating more difficulties than the principles I am trying to put forward, I am willing to withdraw the observation.
[Translation]
Senator Carignan: I agree with Senator Sinclair.
[English]
The Chair: I think there’s a consensus on this proposal.
Would you move to the second one?
Senator Dalphond: The second one is about the federal prosecutors:
The Committee notes that while the bill could help reduce delays within the criminal justice system, it does not provide a complete solution to the problem.
To make the criminal justice system more efficient, the bill must come with greater resources for the court system. In this regard, the Committee is particularly concerned about the lack of adequate funding within the Public Prosecution Service of Canada (PPSC) as mentioned by the Association of Justice Counsel in its brief on Bill C-75 dated May 2, 2019. As the Association points out, the 2018 Public Service Employee Survey shows that only 54 per cent of respondents employed by the PPSC report being able to complete their assigned workload during their regular working hours. The Committee believes that the lack of adequate funding within the PPSC will undermine the bill’s ability to reduce court delays.
It’s self-explanatory. It’s coming from the brief, and it’s just asking the government to devote proper resources.
The Chair: I am sorry, senators, but your intimate conversation is not recorded in the minutes of the committee.
Senator Dalphond: I may have said 44 per cent. If so, I am not sure.
The Chair: It is 54 per cent in the text I have in front of me.
[Translation]
Senator Carignan: I agree with the principle of increasing resources. However, I’m not sure that we should refer to a public service employee survey on the number of hours spent on their work, especially since the Senate conducted a study in this area that, in my opinion, is much more comprehensive than a survey. I’d prefer to take into account our previous report on delays. Many of us have practised law in the private sector. I’ve never seen lawyers prepare for their week of trial from 9 a.m. to 5 p.m. They must always work in the evenings. It makes sense that the survey results don’t provide an accurate picture.
[English]
The Chair: When I do ask the intervenor status, I work over the weekend to prepare my notes if you plead on Monday morning, believe me.
[Translation]
Senator Carignan: The survey is only worth so much. I’d prefer a reference to previous work.
[English]
The Chair: I’ll ask our analysts to refer to the report of this committee which considers that the lack of financial resources explains to a point some of the delay in the courts.
Would you agree, Honourable Senator Dalphond, that we remove the sentence, “as the association points out,” et cetera?
Senator Dalphond: Yes, and refer to the committee’s previous report.
The Chair: Do you agree that we refer to the committee’s previous report?
Senator Dalphond: Yes.
[Translation]
Senator Pratte: Personally, I understand that this is in line with the report. However, I still have some concerns. In my experience here to date, each committee wants more resources in its area. I just wanted to express my concerns to the committee. That’s it.
[English]
The Chair: I don’t want to contradict, but I just want to add an element. In a speech that former Chief Justice Beverley McLachlin made at the annual meeting of the bar in relation to access to justice in Canada, she referred to a lack of resources, which was considered generally by comparing the level of increase in various departments versus the Department of Justice.
I am not suggesting that we refer to that speech, but I remember very well having read it. The best approach would be to refer to our report, which speaks for itself. As I say, it shows our continuing preoccupation in relation to that.
Generally, your observation is certainly worthwhile, Senator Pratte.
[Translation]
Senator Dupuis: My issue with that text is that we’re referring to the testimony of a single organization. I don’t like that idea. We appear to favour one witness over another. I’d prefer to mention only the committee’s work on these issues to ensure access to justice for all Canadians. We’ve certainly noticed that there aren’t enough resources.
[English]
Senator Dalphond: I agree.
The Chair: You agree that we would refer to the committee’s report instead of to the Public Prosecution Service of Canada.
Senator Dalphond: Yes.
The Chair: Is it agreed, honourable senators?
Hon. Senators: Agreed.
The Chair: For the last proposal, Senator Dalphond.
Senator Dalphond: It’s in connection with victim fine surcharges, the past ones that are still unpaid:
The Committee calls on the federal government and provincial fine collection authorities to consider the Supreme Court of Canada’s decision in R. v. Boudreault, 2018 SCC 58, regarding automatic victim surcharges and the new principles established by the bill to waive unpaid victim surcharges imposed between 2013 and 2018.
Undue hardship isn’t a new concept. It was introduced by Bill C-75, and this is referring to unpaid fines or surcharges, I should say. It’s based on what the department has said. I think somebody said before us, and perhaps Ms. Morency could correct me, that a kind of directive was issued to those in charge of collecting fines to waive the uncollected fines resulting from the automatic surcharge. Maybe I am wrong.
Ms. Morency: To confirm, yes, we did say that as an administrative step we had been in discussions with our provincial and territorial colleagues, as well as with the Public Prosecution Service of Canada. I can confirm that the PPSC has issued or taken a decision not to collect unpaid victim surcharges imposed between 2013 and the Boudreault decision in 2018.
We understand that the provinces are also looking to take similar steps. It is a measure that is actively being considered or implemented.
Senator Batters: Just on this one, it’s fine for the committee to call on the federal government to do that. As indicated, we’ve already had one or two amendments that specifically dealt with the issue which were prepared by and authorized by the government. I think that’s already taken care of.
For the committee to call on provincial fine collection authorities to consider Supreme Court of Canada case law, I am sure they’re all doing that, given that they’re all under the auspices of provincial departments of justice. I don’t think it’s a good signal to tell provincial governments to make sure they’re following the law.
Senator Dalphond: To correct, Senator Batters, what we have passed deals with the future. It doesn’t deal with the past. What this observation is about is the past. We should not confuse past, present and future. It is what it is.
That reflects what the witnesses have told us. It’s very difficult for some people on whom these surcharges were imposed to go back to the court and ask for a waiver of them. We should find a way to do it without imposing a further court process.
This observation is really about inviting the government to pursue an administrative way to get rid of the past unpaid surcharges.
[Translation]
Senator Dupuis: I have a question for the committee. Shouldn’t we take the Department of Justice official’s comments into account with respect to the federal government’s decision? Shouldn’t we say that the committee is taking into account the information provided by the federal government regarding the Director of Public Prosecutions’ decision to waive the unpaid fines imposed between 2013 and 2018? We could go one step further by noting that we’ve received information that the federal government and the DPP have decided to waive the fines imposed between 2013 and 2018.
Senator Dalphond: I agree with this change. Instead of “inviting the government,” we can state that the committee notes the federal government’s decision and its invitation to the provincial governments to waive these unpaid charges.
[English]
The Chair: Yes, along the lines of what Ms. Morency has mentioned, unless you want to add something, Ms. Morency.
Ms. Morency: It takes note of decisions taken or encourages those that are still reviewing measures to address. I can’t comment and speak on behalf of the provinces and territories as to how they will move forward.
The Chair: Nor does the committee want to do that either. I am sure about that, as Senator Batters has suggested.
[Translation]
Senator Dupuis: That’s why we’ve only noted that the government invited the provinces to do the same.
The Chair: Yes, exactly.
[English]
The Chair: Okay. With that observation, thank you very much, Ms. Morency. It was helpful to move with that proposal.
Honourable senators, do you agree that the Subcommittee on Agenda and Procedure be empowered to approve the final version of the observations being appended to the report, taking into consideration today’s discussions and with any necessary editorial, grammatical or translation changes required?
Hon. Senators: Agreed.
The Chair: Is it agreed that the chair report this bill, as amended, with observations to the Senate?
Hon. Senators: Agreed.
The Chair: Thank you, honourable senators. This completes our study of Bill C-75.
Senator Lankin: I have a question in terms of the timeline. I know there will be some rewriting of the observations and that some of us will need to be available to review and to respond.
Do you have any guesstimate of the time period for that, which leads to the question of a guesstimate of when you might be in a position to table the report, or will the rewritten observations come back to the committee as a whole?
The Chair: I will repeat the observation made by Senator Carignan, which means that we work, as you know, outside the regular hours and over the weekend, as I also stated. We always count on the diligent support of the analysts. As soon as we have proposals, we will circulate them to the concerned senators who have been mentioned during this discussion.
Senator Lankin: I am wanting to be responsive because I’ll be travelling tomorrow. Will it be likely Monday?
The Chair: Yes.
Senator Lankin: Perfect.
The Chair: I would not be in a position to table the report today, for obvious reasons, or tomorrow since the Senate is not sitting. We’re sitting on Monday evening. As you know, on Monday evening we’re dealing with Bill C-337 at 6:15. We’ll make sure to have a copy of those texts by Monday morning. We’ll circulate it so that I’ll be in a position to table the report, optimistically, next Tuesday. That’s our target.
I am not signing a contract, though. We’ll do our utmost to be sure that all that is put together. As you realize, we have to check the renumbering and everything, with the concurrence of the Department of Justice. We have to ensure that our final product is in sync with the quality we need to have a report and that the observations are rewritten with the comments that have been made around the table.
That’s the target date of what we intend to do, and I think we will have the authority with steering to do this.
Honourable senators, I thank the representatives of the Department of Justice. We very much appreciated your contribution to our work. I will mention you in the report. I will want to make sure it reflects that because it is an exercise that counts on your expertise and professionalism.
I certainly want to thank very much Carole Morency, Director General and Senior General Counsel; Shannon Davis-Ermuth, Senior Counsel; Paulette Corriveau, Counsel; and Matthias Villetorte, Senior Counsel and Team Lead, their contributions.
I also want to thank the two deputy chairs, Senator Dupuis and Senator Boisvenu, and the sponsor and critics of the bill, Senator Sinclair, Senator Boisvenu and Senator Carignan, for their contributions and cooperation with the chair to ensure that when we report to the chamber, we can all stand by the report and be proud of our work. Thank you very much, honourable senators.
(The committee adjourned.)