Moved third 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, as amended.

He said: Honourable senators, I’m pleased to have an opportunity to speak to 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, for which I am the sponsor in this place.

This bill advances much-needed reforms to modernize the justice system, improve its efficiency and effectiveness, and reduce criminal-justice-system delays, while ensuring the safety of Canadians. In addition, it proposes a number of amendments that seek to reduce the over-representation of Indigenous persons in the criminal justice system.

I recognize that this bill has been of particular interest to many in this chamber, given the call from the Standing Senate Committee on Legal and Constitutional Affairs for urgent reforms in its thorough and comprehensive report, Delaying Justice is Denying Justice: An Urgent Need to Address Lengthy Court Delays in Canada, which was tabled in June 2017.

The committee acknowledged in that report that the issue of delays is complex and multifaceted, and engages many different professionals, including judges, prosecutors, defence, legal aid lawyers, police, corrections and probation officers. In addition, as the criminal justice system is a shared responsibility in Canada, federal and provincial/territorial governments are jointly engaged and have committed to responding to this issue. All agree that changes have to be systemwide and require action by all actors in the criminal justice system.

Recommendations from the Senate report recognized this by including calls for criminal law reform, operational changes and consideration of strategic policy issues.

In its response tabled in November 2017, the government presented a multi-pronged and comprehensive federal strategy to reduce delays in the criminal justice system, which included federal, provincial and territorial collaboration in the identification of best practices; and the development of innovative approaches, litigation strategies, programmatic measures, judicial appointments and legislative measures.

With regard to judicial appointments, since coming into office, and as of May 31, 2019, the government has made over 300 judicial appointments. When one checks the Department of Justice Canada website, one can see that, at present, the number of judicial vacancies across the country is largely the same as it has ever been.

Members of the Standing Senate Committee on Legal and Constitutional Affairs deserve our thanks for their thorough review and consideration of the bill. The committee heard from over 44 witnesses and reviewed a significant amount of material, including 20 briefs submitted by various stakeholders, in a very short period of time on a highly complex topic. I’d like to personally thank them for their diligence. I think because of those efforts the bill is stronger.

The Senate committee heard from representatives of police, law societies, defence associations, legal aid groups, victims’ groups, Indigenous groups and academics. We heard compelling testimony by witnesses on a variety of issues, including preliminary inquiries, the impact of the reclassification of offence on agents, DNA and fingerprinting issues, and intimate partner violence and victimization. Some of the amendments that were adopted were a direct result of those testimonies.

Bill C-75 proposes the most significant reforms to the bail regime since 1972. These reforms will streamline and modernize the bail provisions and make them easier to understand.

Of particular interest is the emphasis on and codification of recent Supreme Court jurisprudence in R. v. Antic, decided in 2017, through the enactment of a principle of restraint. The principle directs police and courts to ensure that accused are released at the earliest opportunity, with conditions that are reasonable, relevant and necessary in the circumstances. Bill C-75 also expressly requires that the circumstances of Indigenous accused and accused from vulnerable populations be considered in making bail-related decisions. The bill directs police and courts to impose conditions with which it is reasonably practicable for any accused person to comply.

These amendments have been designed so that police can release accused persons who can safely remain in the community rather than requiring them to appearing before a judge in order to have conditions imposed or approved where the Crown and defence consent. This will cut down on the number of accused waiting in remand for a bail hearing and on the number of matters being scheduled in bail court.

Similarly, since breaches of conditions often lead to the detention of an accused, reforms to limit the conditions imposed to only those that are necessary, relevant and reasonable will also cut down on the number of appearances before the courts and the number of accused being detained as well as the court time related to laying charges for and prosecuting breaches.

As a country, we are regularly reminded of the severity of issues facing Indigenous persons in the criminal justice system. Bill C-75 is a positive step toward taking concrete action to change the laws and practices that have disproportionately impacted Indigenous persons as victims, survivors, accused and offenders. The proposed changes to the bail system seek to ensure there are fewer needless charges and convictions against Indigenous and marginalized Canadians for minor administrative offences.

The bail reforms included in Bill C-75 were generally well received and are entirely consistent with the Senate committee recommendation made in 2017 to make appropriate reforms to the current bail regime. The proposed new process of judicial referral hearing to address administration-of-justice offences when there is no harm to a victim, such as failure to comply with bail conditions or failure to appear in court, has also received positive support.

In recent years, it has become more apparent that the remand population in Canada is growing and that a large number of accused — in fact, in some jurisdictions, the majority of accused — being held in custody are being held because of alleged breaches of bail conditions, some of which may have little to do with maintaining public safety or ensuring attendance in court.

At the same time, accused who are released on bail appear to be under more and more conditions, many of which are improperly based on principles of behaviour modification rather than appropriate goals, such as ensuring public safety and attendance in court. For example, requiring an alcoholic to abstain from alcohol when that had nothing to do with the offence with which he is charged would certainly be setting him up to fail.

The Senate committee’s report indicated a concern that a disproportionate amount of criminal court time and resources are being spent on administration-of-justice offences and recommended that the Minister of Justice develop alternative means of dealing with such matters. It is my view that the judicial referral hearing is an excellent example of what the Supreme Court of Canada and the Senate committee were referring to when they called for cultural shifts toward efficiency, cooperation and fairness.

Reforms to preliminary inquiries have long been the subject of debate in the legal community, as demonstrated by the evidence heard before the Senate committee. Stakeholder views remain strongly divided vis-à-vis the value and function of preliminary inquiries and how they can be improved. The Senate committee report stated that preliminary inquiries are of limited utility if the constitutional requirements regarding disclosure of evidence are respected, in that steps should be taken to eliminate preliminary inquiries or limit their use.

Bill C-75 restricts preliminary inquiries for adult accused to offences punishable by life imprisonment, and permits the preliminary inquiry justice to limit the issues to be explored at a preliminary hearing and the number of witnesses to be heard. These changes are the culmination of a great deal of consideration by federal, provincial and territorial ministers of justice who unanimously agreed that the availability of preliminary inquiries needs to be restricted to more serious offences.

While it is true that preliminary inquiries are not held in the majority of cases, they appear to be consuming a disproportionate amount of time in a number of provinces, including in less serious cases. Indeed, a number of very experienced jurists, including those in the Supreme Court of Canada, have raised questions as to the continued necessity of preliminary inquiries. I believe that Bill C-75’s reforms to preliminary inquiries represent a balanced approach between the many existing views.

The Senate committee heard from witnesses, including both defence and Crown counsel, who felt that proper use of preliminary inquiries can increase efficiencies in some cases. The committee has thus seen fit to expand the availability of preliminary inquiries from what is set out in Bill C-75 to allow them for all indictable offences punishable with maximum penalties below imprisonment for life in two instances: First, upon the joint requests of the parties and approved by the justice when appropriate measures have been taken to mitigate the impacts on any witness; or, second, upon the request of the accused or the Crown, and approved by the justice, if the justice is satisfied that it is in the best interests of the administration of justice and where the criteria relating to witnesses is met.

The hybridization of offences will modernize the current classification of offences in the Criminal Code, which has become somewhat incoherent and inconsistent after years of piecemeal reforms.

Specifically, Bill C-75 proposes to hybridize all existing indictable offences that carry a maximum penalty of imprisonment of 10 years or less. It will maintain the maximum sentence where the Crown proceeds by indictment and create a uniform maximum penalty for imprisonment for summary conviction offences of two years less a day when the Crown attorney chooses to proceed by way of summary conviction.

Hybridizing straight indictable offences that are currently punishable by maximum penalties of 2, 5 and 10 years of imprisonment is a procedural amendment that would provide additional flexibility to the provinces and territories to best use their resources based on the gravity of each case. It would not, in any way, change the purposes and principles of sentencing.

It should not have an impact, for example, on provincial incarceration rates, as prosecutors will be trained to use summary conviction procedures versus indictment generally when it has decided that the Crown will likely be seeking a penalty of two years or less of incarceration.

The need for such reforms arose from a series of meetings of federal, provincial and territorial ministers of justice, focused on possible legislative reforms to reduce delays.

In taking up the Supreme Court of Canada’s call in R. v. Jordan for all participants in the criminal justice system to cooperate in achieving reasonably prompt justice, the reclassification reforms seek to eliminate situations where the current criminal procedure provisions require resources that are disproportionate to the severity of the offence as measured by the sentence that the Crown intends to seek.

The Senate committee adopted three amendments relating to reclassification of offences. One amendment, which responds to concerns by police witnesses, would permit DNA orders to continue to be made for 5- and 10-year indictable offences that Bill C-75 proposes to hybridize and for which DNA orders are currently available.

Second, the committee adopted an amendment to the Identification of Criminals Act to clarify that fingerprints can be taken for hybrid offences even when the Crown elects to proceed by summary conviction. This amendment would permit fingerprints to continue to be taken for the 118 newly hybridized offences. It would also resolve an interpretation issue by the courts with respect to whether fingerprints can be taken for hybrid offences even after the Crown elects to proceed summarily.

Last, the Senate committee unanimously adopted a motion to further facilitate agent representation of defendants in summary conviction matters where the maximum penalty exceeds six months. As honourable senators may know, currently agents, including articling law students and paralegals, can only appear on offences that carry penalties over six months’ imprisonment where the defendant is a corporation or where they are authorized to do so pursuant to a program approved by the Lieutenant Governor of the province.

As amended by committee in the other place, Bill C-75 would also permit agents to appear under criteria established by the Lieutenant Governor of the province and on all adjournment requests.

The proposed amendment gives the provinces and territories the power to establish criteria governing agent appearances in addition to their current power to approve programs and allows any person to appear for adjournments on any summary conviction matter.

The amendment addresses criticisms that have been raised by witnesses by creating an alternate route for provinces and territories to allow for agent representation and recognizes regional diversity and how legal representation is regulated across Canada.

The amendments from the Senate committee would further allow agents to appear in accordance with the law of the province, which would permit appearance by provincially regulated agents.

In response to concerns regarding intimate partner violence, amendments were adopted by the Senate committee to strengthen the Criminal Code sentencing objectives, principles and aggravated factors.

Honourable senators, I would like to speak to the proposed jury reforms included in Bill C-75. As some may know, laws governing jury selection exist at both the federal and provincial and territorial levels. The federal government is responsible for the rules in the Criminal Code governing jury trials and in-court jury selection, while the provinces and territories are responsible for the legislation that governs the criteria of whom may serve as a juror and the process by which the jury roll is created and compiled.

Abolishing peremptory challenges, amending the stand-aside provision, streamlining and modernization of the challenge-for-cause process, amending the criminal records criteria for minor offences, and allowing a trial to proceed on consent of the parties if the number of jurors falls below 10 would address some long-standing concerns with the jury selection process and would help increase jury diversity, while respecting the rights of the accused and maintaining public safety.

The jury selection process in Canada has long been the subject of concern and debate. Several reports have documented discrimination in the use of peremptory challenges and the underrepresentation of Indigenous persons and other minority groups on juries. Concern over the underrepresentation on juries was also reflected in testimony received by the Senate committee.

The proposed amendments in Bill C-75 demonstrate federal leadership in areas falling within federal responsibility and clearly signal that discrimination of any kind has no meaningful role in promoting fairness and impartiality in the criminal justice process.

Honourable senators, while the Criminal Code and Rules of Court already contain provisions for case management and rules and other practice directives enacted by courts, the Senate committee, in its report on delays, was concerned that case management in Canada may be the single biggest contributing factor to court delays.

In order to address this concern, Bill C-75 aims to improve the overall benefits of case management through amendments that allow for earlier appointments of case management judges and by expanding the list of existing powers of the case management judge to include the ability to make change-of-venue orders.

Amendments will also make admissible at trial the transcript of earlier testimony given by police officers in the proceedings, either at the preliminary inquiry or on a voir dire. These changes recognize the unique and vital role of judges in ensuring that the momentum of cases is maintained and that they are completed in an efficient, effective, just and timely manner.

No major concern was raised at committee regarding these measures. I am pleased to report they directly respond to the Senate committee’s recommendation that amendments to the Criminal Code be made to support better case management as necessary.

I was also pleased with the general support in committee for the more technical amendments included in Bill C-75 that facilitate the use of technology in more cases and expand the possibility of remote appearances to promote greater access to justice. These changes will be helpful for courts across Canada and will be particularly important in remote communities. Such measures will respond to the Senate committee recommendation on video conferencing technology.

In addition to the amendments mentioned earlier, the Senate committee also adopted amendments with regard to the federal victim surcharge. As a result of the December 14, 2018, Supreme Court of Canada decision in R v. Boudreault, the victims surcharge which assists provinces and territories to partially fund their victim services can no longer be imposed at sentencing.

The Senate committee adopted an amendment to re-enact a new, revised victim surcharge regime that requires the imposition of the surcharge but provides greater judicial discretion to depart from imposing the surcharge in appropriate cases to address the Supreme Court of Canada’s concerns. Specifically, Bill C-75 will allow a sentencing court to waive payment of the victim surcharge in two circumstances: One where payment would cause undue hardship to the offender, given their precarious financial circumstances; and two, where it would otherwise be disproportionate to the degree of responsibility of the offender or the gravity of the offence. I believe the victim surcharge amendments directly respond to the Supreme Court’s ruling in Boudreault and restore the necessary judicial discretion to ensure that the sentence imposed in each case is fit and proportionate.

In conclusion, I am pleased to see that this legislation not only addresses delays but also takes innovative steps forward in supporting the culture change that is so sorely needed. This important legislation will also make our system more fair, efficient and effective. It will take important steps forward in modernizing the criminal justice system, both in the procedural structures needed to reduce delays and also in not losing sight of the impact it will have on some of the most vulnerable and marginalized members of society.

The government has moved forward with an ambitious and important piece of legislation to address criminal justice system delays. I hope you will join me in supporting Bill C-75 to make urgently needed changes to the criminal justice system. Thank you.

Honourable Senator Omidvar, do you have a question?

Yes.

Would you accept a question, Honourable Senator Sinclair?

Certainly.

Senator Sinclair, this is the third bill that has come before the Senate which has serious consequences on permanent residents who are not yet Canadian citizens. Changes in hybridizing in sentencing will impact maximum potential sentences from six months to more than six months, and that is having a knock-on effect on permanent residents, leading to potential deportations. Bill C-45, Bill C-46 and now Bill C-75.

In each of these instances, I have asked the sponsor and the minister responsible as to when the Immigration and Refugee Protection Act will be amended so that it is in harmony with all these changes to the Criminal Code.

I want to ask you whether you sought and got assurances that, in fact, this will happen. You have talked a lot about the most vulnerable people in society. I would say, in many ways, permanent residents who are not yet Canadian citizens who risk deportation fall into that category.

Thank you, honourable senator, for your question. The issue of deportation and the impact of increasing the maximum penalty for summary conviction matters from six months to two years, in many cases, was raised with the minister when the minister made presentations to the committee.

The issue was not resolved through discussions with the minister. At the committee level, it was pointed out that, generally, most sentencing judges, when they are dealing with people who are not permanent residents, will take into account the impact that a sentence will have upon a deportation question for a particular accused, but that dealing with it through legislation at this particular point in time, particularly in the Criminal Code, would tend to undermine the thrust of the amendments being considered by the committee insofar as the intention to ensure that those who were charged with serious offences would still continue to be considered in an appropriate way.

All I can tell you is that no assurance was given to the committee by the minister and in the same way that the minister responded in the chamber.