Honourable senators, I rise today to speak as the official opposition critic 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.

This bill was presented to Canadians as a historic reform, one meant to reduce delays in the justice system. As we take a closer look at this nearly 200-page omnibus bill, and as we discuss it with defence lawyers, Crown prosecutors and victims, we’re hearing a lot more criticism than positive comments. When we talk about it with people who work in the courts, we mainly hear negative feedback.

As the father of a victim of crime, I want to say how disappointed I am with the way this bill has been fast-tracked by the government leader in the Senate, Senator Harder. As the critic of the bill, I have the right to a briefing from the Department of Justice. It is not a privilege, it is a right. However, I had to request the briefing myself, and I didn’t get it until yesterday, a mere 24 hours before I could read the bill, because nobody on the government side thought to suggest it to my office.

I asked the officials I saw yesterday some questions, but I obviously didn’t receive any answers given the short timeframe. As an advocate for victims of crime and their families, you will understand that I take this bill very seriously. This bill is going to have an impact on human lives. I’m thinking in particular of the victims of crime, sexual assault, terrorism and, above all, the victims of domestic abuse. I’m thinking of the family members of people who are murdered, kidnapped or have gone missing, who I supported after the death of my daughter and who I will continue to support.

First, the bill is supposed to reduce delays in the justice system. The last time I asked the bill’s critic, Senator Sinclair, a question, I wanted to know how many vacancies there were on federally appointed court benches. He wasn’t able to give me an answer at the time, but it would’ve been far from reassuring. On February 1, 2016, there were 27 vacant seats; on July 1, 2016, 41 vacant seats; on August 5, 2016, 44 vacant seats; on June 1, 2017, 53 vacant seats; on May 1, 2018 61 vacant seats; on December 3, 2018, 55 vacant seats; and on March 4, 2019, 61 vacant seats. Instead of improving, as was promised by the Liberal government, the situation continued to deteriorate. In short, this so-called reform was drafted when federal judges were working under constant and intense pressure due to the dwindling number of judges.

Second, the bill is meant to modernize and simplify the bail system. Proposed amendments to the bail system will incorporate a principle of restraint for police and courts in order to favour release as soon as possible. There are times when police are outraged when criminals are able to return to the comfort of their own homes after being arrested for serious crimes. I’m very worried for public safety if this bill passes.

Unfortunately, this fine promise could end up making life even more difficult for victims. This bill would allow more accused persons to be released while awaiting trial. This makes the legal process even more tragic, painful and traumatic for victims of domestic violence, victims of sexual assault or for the parents of a child who was sexually abused. Put yourselves in the shoes of these victims for just one minute. Think about how it would discourage victims from reporting if they knew that their attackers could be released after being arrested. Reporting rates for these crimes are already among the lowest. The government is trying to shorten wait times by limiting the number of criminal prosecutions, and I find this outrageous. It completely ignores the victims’ experience.

As such, under Bill C-75, victims will have even less of a voice and criminals will have more rights than victims do. Reporting rates will decline, especially in marginalized, Indigenous and lower-income communities because it will become even easier to get bail in communities where everyone knows each other, including the victim and the offender.

Thirdly, it is argued that this bill represents a step forward in dealing with domestic violence. The proposed addition of paragraph 515(6)(b.1) would reverse the burden of proof for anyone accused of an act of domestic violence and has been previously convicted of another act of domestic violence. At first glance, that is encouraging. However, upon closer look at this paragraph, it means that a victim will only benefit from reverse onus, transferred to the accused, in the case of recidivism and only for very specific acts of domestic violence. Once again, the government is protecting abusers rather than the victims of domestic violence.

Senators, Nancy Roy, President of the AFPAD, was with Bruno Serre, the father of Brigitte, who was murdered in 2016, when she said that “these victims, unfortunately, did not get a second chance.”

If there must be a first conviction for domestic violence to reverse the burden of proof, if we have to wait until a criminal has beaten, assaulted or confined a woman to be able to reverse the burden of proof when the second offence is committed, then I think we are on the wrong track. The victims of domestic violence know that the behaviour of their spouse or partner could escalate and that the second offence could be fatal.

This bill will also restrict the availability of preliminary inquiries to only those offences carrying the maximum penalty of life imprisonment. At first glance, it seems that such a measure would reduce delays. However, serious concerns have been raised by those who practise law, those who have to deal with not just the theoretical but also the practical implications.

In a March 2017 letter to federal Justice Minister Jody Wilson-Raybould, before she was demoted, the Canadian Bar Association described the cause and effect relationship between preliminary inquiries and court delays as “speculative at best.” I would like to read part of that letter. It says, and I quote:

The Canadian Bar Association Criminal Justice Section’s (CBA Section) perspective on preliminary inquiries is based on our daily experience in courts across Canada as both prosecutors and defence counsel. Rather than being a source of court delays, preliminary inquiries save time and resources in superior courts. Before acting, we urge you to complete your careful and comprehensive review of the many challenges facing Canada’s criminal justice system, taking advantage of current research and hearing from all justice system participants.

I would also add that only 3 per cent of matters proceed to preliminary hearings. Have victims been consulted on this? No. It remains a mystery.

From a Crown perspective, preliminary inquiries also allow the Crown to test the strength of its case and, oftentimes, mend unforeseen holes or difficulties in the evidence, resulting in a stronger prosecution at trial.

Fifth, Bill C-75 would reclassify more than 150 criminal offences. More specifically, more than 110 indictable offences will be hybridized. Some of the indictable offences that would become hybrid offences include defrauding the government, breach of trust and conspiracy.

By reducing the penalties for fraud and other white collar crimes, this bill would discourage the whistle-blowers from denouncing fraud. Take, for example, those who courageously denounced crimes in Quebec’s construction industry. I remind senators of the infamous Michael Applebaum, the former mayor of Montreal found guilty of eight charges, including fraud against the government and breach of trust. Bill C-75 will make it possible for white collar criminals to get reduced penalties through summary trials and sentences of two years less a day.

Why reduce sentences for criminals like Michael Applebaum who steal from taxpayers and undermine the credibility of our institutions? There was also the notorious Bernard Trépanier, whom you probably know as “Mr. Three Per Cent.” He was to be tried in two criminal cases related to the Quebec construction industry, one for his alleged involvement in the Faubourg Contrecœur scandal and the other for charges of fraud and corruption involving a municipal contracts kickback scheme.

Now the government is suggesting such criminals should receive more lenient sentences. That makes no sense at all.

Under Bill C-75, the subsection 139(2) crime of obstructing justice will become punishable on summary conviction and liable to imprisonment for less than two years. According to subsection 139(3), that covers dissuading a person by threats, bribes and so on. How does it make sense to be more lenient when it comes to crimes that undermine the justice system? Right now, a conviction for obstructing justice is liable to imprisonment for up to 10 years, and with good reason. Victims are being threatened or bribed so they won’t testify. How is this change going to help victims and protect witnesses?

Cinar founder Ronald Weinberg was convicted of nine of the 16 charges he was facing, including fraud, forgery, uttering forged documents and filing a false prospectus. The false prospectus offence listed in subsection 400(1) is also among the offences reduced by a possible summary conviction. Do victims of white-collar fraud support these kinds of changes? I highly doubt it.

The forced marriage offence can have serious repercussions on victims. Imagine the young women and girls who are settling in our country. Where did this bizarre idea come from, this idea to reduce sentencing from a possible maximum of five years to two years less a day or a fine? I would refer you to section 293.1, forced marriage, and section 293.2, marriage under age of 16 years. To this day there are still Quebecers who are being threatened by their families, mistreated and sometimes forced into marriage in the name of honour. By reducing sentences to less than two years for forced marriage, this bill could send victims the wrong message. The abusive partner could be out of prison in no time at all. It’s practically an invitation to not denounce the offender, once again.

Criminals involved in human trafficking and those who abuse young girls in the world of child prostitution will benefit from these new amendments. For example, the criminal use of false passports is often associated with the smuggling of illegal immigrants, human trafficking and international terrorism. The victims of these crimes are often traumatized for life. Why reduce the sentences for these crimes to less than two years and one day? The crime of material benefit, trafficking, is currently liable to imprisonment for a term of not more than 10 years. Why reduce the sentence for such a prevalent crime in the sordid world of the exploitation of young girls to less than two years and one day? Where is the logic in that? Where is the humanity in these amendments?

Bill C-75 proposes to change serious offences, such as the kidnapping of a child under 16 and kidnapping of a child under 14, into hybrid offences punishable by two years less a day. Put yourselves in the place of a parent going through something like this. How can we justify that this type of criminal may end up in a provincial jail and be paroled after serving one sixth of his sentence? Bill C-75 proposes reducing delays for federal courts by dumping the problems and criminals on provincial courts and prisons. Provincial jails are already overcrowded and, furthermore, they do not have the resources to deal with this type of criminality. This bill is simply setting criminals up to reoffend.

I was very upset when I saw that the offence of interfering with a dead body — yes, you heard me right, interfering with a dead body — was going to become a hybrid offence. This is a crime that can be associated with manslaughter. When I visited with the families of murder victims, I heard more than my share of this kind of horror story. How can the government explain its decision to make this offence punishable by a sentence of two years less a day or a fine, when the maximum is currently five years?

According to lawyer Kyla Lee, the provisions of Bill C-75 modifying the law in relation to bail hearings are “unnecessary, overbroad, and severely limit the rights of an accused person.” She went on to say that “[t]he proposed amendments in Bill C-75 are both unconstitutional and unnecessary.” The upshot is that defence lawyers will file lawsuits and legal challenges that will eventually wind up in the Supreme Court with declarations of unconstitutionality.

Sixth, Bill C-75 will drastically alter the jury selection process. The bill proposes to abolish peremptory challenges. Defence lawyer Laurelly Dale, who acted as counsel in R. v. Kokopenace in 2015, wrote in Lawyer’s Daily that this case showed that the problem lies in the selection process, and therefore in the lists. Let me quote what she wrote:

We ended up with a jury comprised of non-Aboriginals, not due to the peremptory challenges but because of the jury selection process. I agree, change should be made to our jury selection to ensure that it is truly a jury of our peers.

If Bill C-75 is meant to improve representation, it should focus on increasing collaboration with the provinces, which are primarily responsible for this component of the jury selection process. This also means that there is not much Parliament can do to address the issue of representation. It is therefore advisable to maintain a healthy skepticism towards federal legislation that seeks to change well-established legal processes in the name of “representation.”

Seventh, the bill will expand judicial case management powers.

It is important to emphasize that key stakeholders, such as the Criminal Lawyers’ Association, were not consulted about Bill C-75. I am still waiting to find out which victims were consulted. This bill is also supposed to improve the approach to administration of justice offences, including for youth, but, upon closer inspection, it turns out to be a step backward.

That concludes my presentation on Bill C-75, which I believe the government drafted hastily, ostensibly to reduce delays, create a more inclusive process for victims and better protect women from conjugal violence. I believe this bill will do the opposite. What worries me most is the conjugal violence element. The notion that reverse onus should depend on how many victims the accused has is unacceptable in this country. I don’t understand it. When we asked the Department of Justice official about this, we got a political answer. If any amendment is to be made to this bill, it should be this one: every time a woman is assaulted, the abuser must prove that he is no longer dangerous. To do otherwise is to condemn women to death. Thank you very much.

Honourable senators, I would like to say a few words on Bill C-75. My comments will be centred a little bit around agreements that were made on Bill C-75, but they will nevertheless be in the context of this particular bill.

This morning, honourable colleagues, Senator Smith came to my office and asked what kind of an agreement I had with Senator Harder on Bill C-75 and Bill C-85. I said that the agreement was that we would make sure these bills would be spoken to this week, and we would then let them go to committee. Senator Smith told me that Senator Harder’s impression of our agreement was different than that; that these bills would both be spoken to today and they would go to committee.

So we decided we would go and see Senator Harder. About a quarter to 12:00, we went into Senator Harder’s office and had a discussion. Senator Harder assured me that I had absolutely promised that this would be done today and both bills would be spoken to. I said, “Well, I’m sorry. That’s not my understanding. My understanding was this week.”

He said to me that if I did not do it this week — if it wouldn’t be done today, he would be bringing forward a programming motion. We had a discussion. I may be a bit of a hard nut sometimes, miserable and not easy to get along with, but I said, “Well, one thing I pride myself on is being a man of my word, and if I commit myself to something, I will follow through with that.”

Senator Harder, you are of the opinion and believe that I said today that I would speak to my colleagues and see if we cannot get them to speak today. Now, as evidenced by the speech we just heard, Senator Boisvenu agreed to that. Senator Frum also agreed to speak to Bill C-85. I said to Senator Harder, “I will further report to you when we come back into the chamber.” He said, “That’s not good enough. I want to know ahead of time.” I said, “Okay. Will you be in your office?” He replied, “You can text me and let me know.” I said that was okay. “But I want to assure you, Senator Harder, I believe I’m a man of my word and I will try.”

At 12:15, from our caucus meeting, I texted Senator Harder. My text was:

We will speak to both 75 and 85 today.

Senator Harder texted me back within the same minute. It says 12:15.

Don, in the spirit of transparency and the commitment I made at our last meeting —

— the commitment that Senator Harder made, he says right here —

— this morning, I have had further discussions with other leaders and will be proceeding with a programming motion this afternoon —

— a programming motion that has probably never been seen in 150 years of this Senate.

Colleagues, I believe if we want to be collegial and if we want to collaborate, if we make deals, we keep deals. A few weeks ago, we had this same conversation when I made a deal with Senator Harder on I believe Bill C-55 — I’m not entirely sure — and Senator Harder came in here and served a notice of motion that same day. That, colleagues, is not the way to do business. Whether we agree politically or not, we need to be honourable and men and women of our word.

To do what we saw here today is anything but keeping our word. I am offended and astounded beyond belief that my good friend Senator Harder would do what he did today.

Before I lose it completely, I will stop there. I will simply take the adjournment of the debate in my name.

We have an adjournment motion on the floor.

Senator Woo, do you have a question?

Senator Plett, would you take a question?

Certainly.

I would be very happy to, Senator Woo. I have had no discussions with you because, quite frankly, you are not representing anybody. You are representing, by your own admission, 58 independents. A group of independents is an oxymoron: You’re either a group or you’re independents. We are the official opposition. Senator Harder is the government. So why would we have any conversations at all with a group that has no entity?

Please, you asked me to answer your question. I’m still answering.

Senator Day is representing an organized group who, quite frankly, probably on October 31 will be the official opposition because we’ll be the government.

That’s sort of bittersweet, isn’t it?

Well, quite frankly, no, I cannot confirm what kind of meetings you, Senator Smith, Senator Harder and Senator Day had. I can confirm what kind of meetings I’ve had with Senator Smith and Senator Day. So if you have a leaders’ meeting, that is fine. You asked me what I did. Regarding my meeting with my leader today, together with my leader, we went to the Leader of the Government and had a meeting and got commitments. The day, Senator Woo, that you can commit your caucus to things, our caucus will be happy to start having those meetings.

Again, Senator Woo, no, I cannot tell you exactly what Senator Smith said in my office about the programming motion because I’m not sure that he did. But Senator Harder did. Senator Harder promised that he would not bring in a programming motion. Again, Senator Woo, you have nothing to do with the programming motion. It has been done by Senator Harder and the government. They brought in the programming motion. So what conversations you had with anybody else in this chamber is irrelevant.

Senator Plett, I understand the vigour with which you are arguing to defend that you are a man of your word. I know when people are accused of something at a personal level, even by inference, by the events that have taken place, that can be taken to heart very seriously. I see you, in fact, are in that space.

I think there’s an issue of bifurcated leadership that’s a problem with communications. Irrespective of these particular motions that will be coming forward, your statement that you’re always a man of your word — and I think for the most part you are — isn’t in accord with my experience with you with respect to the O Canada bill and the months of discussion we had and the number of times you made commitments to me which you failed to follow and the final end of it, where you said to me: “You didn’t really believe me, did you, senator?”

We have a jovial relationship around these things, but, please. There’s a lot going on in Ottawa these days that rises to the level of sanctimony beyond belief from what I’m seeing. There’s a bit of that in what you’re saying today. I suspect my question to you would be, “Would you agree?” Your answer would be “no,” but I want that on the record.

I hope there’s no danger of my running out of time before I can adjourn this.

Senator Lankin, I will probably say “yes” to that. I am sure there have been times when I have failed. As Senator Harder pointed out to me today, I told him one thing and he understood something else. So I said, “If that’s what I told you, let me change that.” So I did. Senator Lankin, I remember much of the anthem bill and our discussions. I don’t believe that I ever lied to you then, and I don’t believe that I have lied in this chamber.

Senator Plett, maybe you can clear up some things in my mind that are confusing for me. First and foremost, will you agree, Senator Plett, that in the decade that we’ve been in this chamber, I have never seen a motion like this, which is time allocation on steroids. That’s the first question.

Second, we’re arguing about semantics here with the Leader of the Government-appointed ISG group and the government leader that has been appointed by the same government about whom you have negotiated with, when the reality of the matter is, it seems to me, Senator Plett, that they both agree with the motion. The problem isn’t the motion for them; it’s who you’re negotiating with.

Can you clear all this discrepancy up for me, because it’s a bit confusing, as I’m sure it is for the Canadian public.

Senator Plett, before you respond, there’s only a notice of that motion given so far, so it’s inappropriate to discuss the motion. You can answer Senator Housakos’ question with respect to anything other than debate on the motion because as of yet there’s only been a notice given.

I apologize if I didn’t understand all of that, Your Honour. I will briefly try to answer Senator Housakos’ question.

The answer to your first question is in the 10 years I have been here, there has never been a notice of motion for a motion given like we just heard here today. I suspect in 150 years that hasn’t happened.

Regarding your second question, insofar as negotiation is concerned, I think I have said to Senator Woo — and I respect Senator Woo as an individual and as an honourable senator very much — that I do not agree with the fact that they are any type of an organized group. Thus, I do not believe that we, as the official opposition, need to negotiate with them unless the honourable senator wants to become part of the government caucus, which, as I’ve been told sometimes, “Don, your fig leaf is getting rather small.” That might be said here in this particular case, too.

Honourable senators, we have a motion to adjourn. It was moved by the Honourable Senator Plett, seconded by the Honourable Senator Wells, that further debate be adjourned to the next sitting of the Senate.

Is it your pleasure, honourable senators, to adopt the motion?

All those in favour of the motion will please say “yea.”

All those opposed to the motion will please say “nay.”

In my opinion, the “yeas” have it. The motion is adjourned.