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Criminal Code—Youth Criminal Justice Act

Bill to Amend--Second Reading--Debate Continued

March 21, 2019

Honourable senators, I rise today 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.

I thank Senator Sinclair for his work as sponsor of this bill. One of the two stated purposes of Bill C-75 is to ensure that the criminal justice system better reflects the needs and realities of Indigenous peoples and other marginalized Canadians.

Testimony at committee in the other place indicated that while many aspects of Bill C-75 are meaningful steps forward, there are also some lingering concerns.

Indigenous organizations have expressed support for the efforts of Bill C-75 to reduce systemic discrimination. These include measures to provide for consideration of Indigenous history and reduce unnecessary conditions in bail decisions; create alternatives to administration of justice charges and convictions; allow judges discretion to not surcharge fines; and eliminate peremptory challenges of jurors.

Others expressed concern that raising the maximum prison sentence for summary convictions from six months to two years would likely disproportionately impact Indigenous peoples, who are already vastly overrepresented in Canadian prisons.

Feminist legal experts supported measures designed to make it easier for women to report assaults and testify as witnesses in these cases, including extending the period for reporting a summary conviction offence from six to 12 months and restricting the use of preliminary inquiries.

They expressed concern, however, about the lack of a national strategy on violence against women and the dearth of options within the current criminal system to send a strong and meaningful message that communities must take violence against women seriously.

Other experts working with and on behalf of those most marginalized have also made a variety of recommendations. These include requiring that reasons be provided when conditions on bail or sureties are imposed in order to ensure that the bill’s intention to reduce unnecessary conditions is effectively implemented; and means to limit and possibly cap the amount of time individuals may be held in pretrial detention.

Bill C-75 seeks to ensure that justice is done better for all. It is vital that our consideration of this bill be informed by the perspective of witnesses with expertise regarding the impact of the criminal justice system on those who are most marginalized. I will highlight three issues in particular that I believe require further study at committee.

The first relates to something that is conspicuous in its absence. It was surprising, given its billing as a comprehensive overhaul of the Criminal Code, that Bill C-75 failed to tackle mandatory minimum penalties. Courts of appeal across Canada continue to strike down mandatory minimums as unconstitutional because they result in grossly disproportionate punishment.

The government’s election platform committed to implementing the Truth and Reconciliation Commission Calls to Action, including number 32, which calls for providing judges the discretion to depart from mandatory minimum penalties upon giving reasons. The mandate letter for the Minister of Justice includes “a review of the changes in our criminal justice system and sentencing reforms” and “initiatives to reduce the rate of incarceration amongst Indigenous Canadians.”

Public consultations on mandatory minimum penalties undertaken by the Department of Justice in furtherance of this mandate demonstrated that nine in 10 Canadians wanted the government to consider giving judges the flexibility to not impose mandatory minimum sentences.

Although judicial discretion was clearly considered by the government, Bill C-75 is silent when it comes to mandatory minimums, a reality that is incongruous with the bill’s stated purpose of ensuring the criminal justice system better reflects the needs of Indigenous peoples and other marginalized groups.

Clause 294 of the bill, on the other hand, specifically grants judges the discretion to impose a sentence higher than a legislated maximum in cases of intimate partner violence. Ironically, some of those most disadvantaged by the government’s refusal to allow judges to exercise discretion to go below legislated minimums are women who are victims of violence who respond with force to violence perpetrated against them or their children; women who routinely accept offers to plead guilty to charges such as aggravated assault and manslaughter even when they have valid defences. They do so because of the prospect of mandatory penalties, especially if the alternative is a potential life sentence if no defence is mounted or the defence is unsuccessful.

At committee in the other place, numerous witnesses arrived before the committee with recommendations that mandatory minimum penalties be removed from the Criminal Code or that an exception be provided to them. They clearly articulated how the continued existence of mandatory minimum penalties undermines both of the two stated goals of Bill C-75 — that of promoting efficiency and reducing court delays, and that of better responding to the realities of Indigenous peoples and others who are marginalized within the criminal justice process.

I trust that the committee study of Bill C-75 will include scrutiny of the absence of action regarding mandatory minimum penalties.

In addition, representatives of law school clinics testified that raising the maximum penalty generally applicable to summary conviction offences from six months to two years could spell the end of legal education programs in some law clinics. These programs provide law students the opportunity to learn under the tutelage of experienced lawyers, while also providing members of marginalized communities with vital access to cost-free legal representation from clinic lawyers and the students working under their supervision.

Section 802.1 of the Criminal Code prohibits agents, who include law students and articling students, from appearing in court on charges where the maximum sentence that can possibly be imposed is greater than six months. Six months is currently the maximum sentence for most summary conviction offences, and clinic law students have long carried out the vital work of appearing in court for those who would otherwise be unrepresented. In doing so, they have helped to improve access to justice for marginalized individuals and prevent the delays, inefficiencies and injustices that too often occur when individuals without legal training represent themselves. At least three of those clinics work in particular with members of Indigenous communities.

Bill C-75 will result in maximum penalties of over six months for all but a small handful of summary conviction offences, making legal clinic students ineligible to represent clients. The members of the committee in the other place heard these concerns and took a step in the right direction; however, the resulting amendment risks providing only a partial solution.

First, the amendment is limited to allowing students to represent clients only on adjournments. Only allowing clinic students to represent clients for procedural motions to postpone and reschedule hearing dates, rather than the full scope of representation that students can currently provide, would significantly limit the benefit to both clients and students of current clinic programs.

Second, while Bill C-75 would allow provinces to use orders-in-council to grant students the ability to represent clients, there is no indication that provinces, including this one, are planning to take such steps.

We have a valuable opportunity at committee to ensure that law students and legal clinics can continue their exemplary work providing legal representation to those most in need of a voice within the legal system.

Third, and finally, Bill C-75 will bring into force Criminal Code provisions passed as part of former Bill C-452 and relating to the prosecution of exploitation and human trafficking.

Honourable colleagues, I believe we all agree on the need for urgent action to end the exploitation of women and girls. Findings of the UN special rapporteur on violence against women, the house Justice Committee’s report on human trafficking, and the Thunder Bay Police Services Board Investigation, as well as testimony at the Inquiry into Missing and Murdered Indigenous Women and Girls have all emphasized that Indigenous women and girls are particularly at risk and they unequivocally link this reality to Canada’s colonial legacy of discrimination against Indigenous peoples and the failure to ensure the safety and to uphold the rights of Indigenous women and girls.

Criminal law responses to exploitation and trafficking too often risk missing the mark, however. Fundamentally they fail to address underlying social and economic inequalities that too often result in women and girls being exploited. Even within the criminal justice system, however, law enforcement activities have been criticized for failing to hold accountable those who are profiting from exploitation at the highest level. If they are to live up to their laudable purpose, Bill C-75’s provisions on trafficking must go beyond the current processes that too often focus on arresting exploited women and those involved in trafficking schemes at the lowest levels.

Bill C-75’s first measure is a presumption of exploitation wherever a person who is not exploited lives with or is habitually in the company of a person who is exploited. This provision aims to facilitate proof of exploitation, in particular given the power imbalances faced by exploited and marginalized women that prevent far too many from reporting their exploiters, let alone providing witness testimony. Yet as the Canadian Centre to End Human Trafficking has noted, those most frequently arrested on the scene of illicit businesses and in the immediate presence of exploited women are often exploited women themselves and low-level managers, some of whom were also formerly exploited women. They are not leaders of trafficking organizations and most certainly not those who are profiting most from them at the highest levels.

The second key provision imposes a reverse onus on those convicted of exploitation, intended to facilitate forfeiture of proceeds of crime. Again, this is a provision whose effectiveness relies on the ability to hold those profiting at the greatest levels accountable. Those who seek to profit from exploitation too often see it as a “low-risk, high-profit” enterprise because of the reusable nature of human beings, as compared, say, to trafficking in drugs or firearms, and the anonymity that corporate law affords to those who wish to use lawful corporate structures to carry out human trafficking.

I trust these provisions will be considered in depth at committee so as to ensure they meet the objective of holding accountable those who choose to establish and profit from illicit businesses that perpetuate the exploitation of women and girls.

Honourable colleagues, there are too many for whom the criminal justice system risks being a fundamentally unjust system. I strongly support referring this bill to committee so that senators can begin the important work of hearing witnesses as soon as possible and let us all work together to ensure that the experiences of those most marginalized are at the heart of our consideration of this bill.

Thank you. Meegwetch.

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