Honourable senators, I rise today at second reading of 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, to share with you my concerns. This bill makes major changes to our criminal justice system. One of its objectives is to comply with the teachings of the Supreme Court of Canada, more specifically those set out in Jordan, by reducing delays in the Canadian court system. However, I think the way the bill goes about meeting that objective is questionable and that the bill contains a number of inconsistencies. I’ll be drawing your attention to a few specific issues today, namely, the reclassification of offences, the amendments to the jury selection process, and the changes to the Youth Criminal Justice Act.

With regard to the first issue, the reclassification of offences, I was very surprised to see that the bill would reduce sentences for so-called white-collar crime, which gives the impression that that sort of crime is less serious and more acceptable in our society. Contrary to what the government would have us believe, these changes will affect sentencing and will not necessarily reduce court delays. On the contrary, there will most likely be an increase in the number of cases that must be heard before the provincial courts. I’m not the only one worried about this negative effect. The Canadian Bar Association, which has examined the practical implications of these amendments, is also concerned about this. It said that the bill, and I quote:

 . . . would likely mean more cases will be heard in provincial court. This could result in further delays in those courts . . . .

This is another example, and there are many, of the government completely foisting its problems onto the provinces instead of tackling them head-on. Honourable senators, you know that fighting corruption and fraud is important. Therefore, I cannot acquiesce to the amendments introduced by Bill C-75, which hybridizes certain criminal offences and makes them summary offences. The offences reclassified as hybrid offences include the following: section 121(3) of the Criminal Code, frauds on the government; section 122 of the Criminal Code, breach of trust by public officer; section 123(1) of the Criminal Code, municipal corruption; section 123(2) of the Criminal Code, influencing municipal official; section 125 of the Criminal Code, influencing or negotiating appointments or dealing in offices; and section 126(1) of the Criminal Code, disobeying a statute.

It is rather ironic that changes regarding these types of crimes are being proposed at a time when events involving similar accusations have caused much ink to flow since February 7. Should we be asking why amendments concerning remediation agreements are not found in Bill C-75 but were included in the budget? I remind you that Bill C-75 is entitled An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts. Bill C-74, which contained the provision on remediation agreements, is entitled An Act to implement certain provisions of the budget tabled in Parliament on February 27, 2018 and other measures.

Honourable senators, how do you explain that a government that’s preparing to introduce an important bill to amend the Criminal Code drops or rather slips part of its changes in a budgetary bill? I want to draw your attention to the fact that these two bills were introduced two days apart — Bill C-74 on March 27, 2018, and Bill C-75 on March 29, 2018. It seems like more than a coincidence to me. We can all agree that if the government didn’t really want to shine the spotlight on a change to the Criminal Code that would allow for a remediation agreement to be negotiated to address corporate criminal wrongdoing, it would have handled this differently. Maybe one day we’ll hear the end of this mysterious story.

Let’s come back to Bill C-75. As for the second issue raised by this bill, namely the changes made to the jury selection process, some have raised concerns and reservations about the provisions that repeal the right to peremptory challenges, as it affects a constitutional right, the right to a fair, equitable, and impartial trial. Let’s not forget what a peremptory challenge is. The defence and the Crown can exclude a certain number of potential jurors without explanation. The peremptory challenge originated in the common law tradition more than 300 years ago and is founded on the right to an impartial trial, which was enshrined in our Constitution under article 11(d) of the Canadian Charter of Rights and Freedoms. In 1979, Supreme Court Justice Pratte explained the following in Cloutier v. The Queen:

The very basis of the right to peremptory challenges, therefore, is not objective but purely subjective. The existence of the right does not rest on facts that have to be proven, but rather on the mere belief by a party in the existence of a certain state of mind in the juror. The fact that a juror is objectively impartial does not mean that he is believed to be impartial by the accused or the prosecution . . . .

Provisions concerning peremptory challenges ensure that the right of both the Crown and the accused to an impartial trial and the selection of an impartial jury is respected. The changes in Bill C-75 are a response to the headline-grabbing R. v. Stanley case in Saskatchewan, in which the jury was not representative of the diverse local community. I agree with the Barreau du Québec’s statement in its brief to the House of Commons committee on the need for and usefulness of peremptory challenges. I quote:

In fact, through the appearance of prospective jurors, lawyers can perceive through their words and non-verbal language whether those jurors will have the capacity to listen objectively to the evidence to be presented and to make an impartial judgment as to that evidence. They also ensure that the accused accepts the legitimacy of the jury and, by extension, the verdict and sentence that will be pronounced.

It’s obviously disappointing to realize that some peremptory challenges are based on discrimination. However, completely abolishing these challenges won’t make juries across the country culturally diverse but could seriously affect the parties’ and the public’s trust in the impartiality of verdicts and sentences. I also remind senators that civil law in Canadian provinces, other than Quebec, follows common law practices, and jury trials may be held for civil matters. Some provinces allow for peremptory challenges in civil trials. The total abolition of peremptory challenges in criminal law would create inequalities among the provinces and inconsistences between federal and provincial law.

The last aspect I want to talk about is the part about youth criminal justice. Criminal law in Canada is made up of a fragile balance between utilitarian and retributive theories. Punishments therefore act as both a condemnation and a deterrent, meaning that they deter the subjects of Canadian law from committing crimes. The amendments made to the Youth Criminal Justice Act seriously undermine the latter objective. Clause 376 of Bill C-75 repeals the obligation for the Attorney General to consider whether it would be appropriate to seek an adult sentence if the offence is a serious violent offence and was committed after the young person attained the age of 14 years.

Repealing that provision, which protects the public interest, will make it easier for adults to use adolescents to commit serious crimes because the likelihood of a harsh sentence will be lesser.

Moreover, studies have shown that young people are likely to receive adult-type sentences in fewer than 3 per cent of cases involving adolescents, and most of those involve very serious crimes or adolescent repeat offenders.

Those cases are the exception, but they exist, and the victims are very human. Why deprive the courts and Crown prosecutors of that tool?

The government says that Bill C-75 addresses issues that arose in Jordan and will reduce delays in the justice system. If the government truly wants to achieve that objective, it should start by filling the 50 or so vacancies on Canadian benches. Unlike Bill C-75, that would be a worry-free way to tackle the problem.

The government introduced a bill that doesn’t tackle the problem and won’t reduce delays in Canada’s justice system. Not only will Bill C-75 not speed things up, but it will also weaken our justice system. Thank you.