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Report of the Standing Senate Committee on Legal and Constitutional Affairs on 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, with amendments and observations

Report of the Standing Senate Committee on Legal and Constitutional Affairs on 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, with amendments and observations

Report of the Standing Senate Committee on Legal and Constitutional Affairs on 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, with amendments and observations

Hon. Serge Joyal moved the adoption of the report.

He said: Honourable senators, I listened to the debate that took place before I stood up before you to move the thirty-second report of the Standing Senate Committee on Legal and Constitutional Affairs. I was thinking of the complexity of Bill C-75. I hold it here in my hand. Honourable senators, it contains 406 clauses. I look at Senator Patterson. It’s more than half of the clauses of the Criminal Code. This is the Criminal Code, honourable senators, the most complex statute on Canadian statute shelves, and this bill amends the Criminal Code with 406 clauses.

You can imagine that your Standing Senate Committee on Legal and Constitutional Affairs, which has been tasked to study this bill, I cannot but thank the vice-chairs of the committee, Senator Dupuis and Senator Boisvenu, and all the senators on the committee. I have the impression, as chair of the committee, of being the moderator of the legal seminar of a law faculty in any university in Canada because, of course, there is not a single statute in Canadian law that is more complex and more difficult to connect with all its implications, because each clause refers to a number of other clauses that are all intertwined.

When a bill amends subparagraph (i)(e) of subparagraph (e) of clause 406(17), you might understand that just finding that in the Criminal Code, where it stands and in which context it takes place in the code is a very difficult operation and exercise.

Your committee was tasked with reviewing this bill in early April of this year, this spring. I’m very proud to report and give you, in lay terms, the substance of the bill, because not all of you will delight in reading that kind of legislation.

Nevertheless, you are parliamentarians and you are legislators and you will be called to pronounce on it, and that gives you a right to know what this bill contains.

The first objective of Bill C-75 is essentially to modernize the Criminal Code and to give effect to two decisions of the Supreme Court in the Jordan and Codycases. You will remember those decisions of the Supreme Court three years ago, which compelled any trial or audience in relation to the Criminal Code be conducted within a specific limited time of 18 months or a longer period, depending on the gravity of the offence.

Those decisions really turned the system upside-down. The Criminal Code needed to be amended to give effect to those limits under which the criminal system would operate in the future.

The objective of the bill was to address the delays that were plaguing the criminal justice system before the Jordan case. I remind you that the Legal and Constitutional Affairs Committee, under the chairmanship of former Senator Runciman, and Senator Baker, who was the vice-chair at the time, produced a specific study titled, Delaying Justice Is Denying Justice.

All of us, collectively, as an institution, were also considering that there were deficiencies in the criminal justice system that were producing too many delays and we had to address that because, as I just mentioned, justice delayed is justice denied. If you can’t go to court in a reasonable period of time, you don’t have a right because the fees accumulate, you get frustrated and the witnesses lose their memory. There are all kinds of incidental elements that happen so that by the end of it you don’t really receive the legal treatment that you’re entitled to receive.

Our committee produced that report with 50 recommendations. A fair number of them are in Bill C-75, plus, of course, those suggestions that stem from provincial, territorial and federal justice minister conferences that regularly produce recommendations and conclusions to improve the functioning of the criminal justice system.

Among that work, the committee made 14 amendments to Bill C-75 and we also produced seven observations. I will come to them later in my presentation.

First, I want to outline the eight essential elements of Bill C-75 in a very short time. I won’t do a legal dissertation. I won’t abuse your patience. I will try to put this in the simplest terms possible because, as my brother would say, when lawyers involve themselves in too much intricate reasoning and the obscurity of legal language, you, in fact, lose people instead of trying to enlighten them. I will try not to lose you by explaining to you the eight essential elements of Bill C-75.

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The first element, honourable senators, is to reclassify offences that were the object of indictment procedures, which are often the most serious in the Criminal Code and usually incur a sentence of 10 years or less, and offences that are under summary conviction procedures — lighter offences and lighter sentences — in order to allow for the possibility for a Crown prosecutor to decide if that accused will go under indictment instead of under a summary conviction.

In other words, there would be flexibility in the system, considering the seriousness of the offence, all the facts around the facts and considering what would be the need to have a sentence that would be scaled within 10 years maximum or 2 years maximum.

In other words, we would have more flexibility in the code. This is, of course, very important because if you take the corridor of an indictment procedure, this corridor is fraught with all kinds of delay possibilities because there are all kinds of motions that can be made by the parties. There are all kinds of requests for additional elements of proof and so forth. If you allow the Crown prosecutor to opt for summary conviction, I would say this is a fast track, a faster way of addressing the criminal offence that has to be addressed by the system.

That was the first element of the code. In other words, flexibility in the option of deciding if you would opt for indictment instead of summary conviction and adjusting the maximum penalty accordingly. According to the code, most summary offences now are under two years maximum penalty. That means for many summary offences, the penalty has been increased to allow that if you choose that route, then the accused will face responsibility that is higher because he or she is not the object of a decision to go under an indictment procedure. That’s the first fundamental element in the code.

The second, you will understand, is also very important. The bill originally abolished preliminary inquiries. Those of you who have watched TV or movies will know the first thing is to allow the elements of proof and come to a conclusion on whether there are enough elements of fact and proof to go to trial. That is also a first step. It’s a preliminary step to the trial — there’s no doubt there is ample documentation in relation to that. This is an element of the procedure that is usually used to delay everything.

The decision, after due consideration by the provinces and by all those who consider the way to address a modern system of justice, was to abolish preliminary inquiries and reserve them only for adults facing a charge of life imprisonment. In other words, only in those cases would there be a compulsory preliminary inquiry and one will understand why because, at the end, is life imprisonment.

I will later explain that the committee decided to amend that section of the original proposal in Bill C-75.

The third element of Bill C-75 is to protect victims of intimate partner violence. When I use the term “intimate partner,” you will ask me what is an intimate partner? I don’t want to make a bad joke, but I will assert back, “What are your intimate parts?” If I say “intimate partner,” you know what it means. It is somebody with whom you share intimacy; let’s put it that way. The bill introduced that concept for the first time in the Criminal Code.

This is very important because we know that if we want to address violence in a contemporary context, the victims of intimate partner violence is a contemporary phenomenon that needs to be addressed in a much more efficient way. The bill provides if there is a repeat offence by an intimate partner then, of course, the sentence is higher and when the judge has to decide about bail, he or she also has to take that into consideration that there is a repeated offence.

That is the third fundamental element of changes in the Criminal Code. The fourth one is about modernizing bail practices, especially due consideration to Aboriginal people. We all know that bail is a procedure whereby those who are the most vulnerable in our society have less capacity to defend themselves at bail hearings. They end up in bail custody, being denied and going into custody. The bill addresses that, to make it much more efficient in terms of dealings with bail hearings with due consideration to vulnerable populations, especially Aboriginal people.

The fifth is to give more discretion to police and judges in dealing with the administration of justice offence. In other words, administration of justice offences is more in the nature of an administrative offence, an administrative failure. It doesn’t per se endanger the life or integrity of other people. Unless there is that element, the administration of justice offences should be more flexible and responsive to the special circumstances into which they take place.

The sixth is about the strengthening of the management case power of judges. The judge is master in his or her court. It’s the judge who presides. We have judges here, Senator Andreychuk, Senator Sinclair, Senator Dalphond and Senator Wetston. They will tell you that in their courts, they were the masters of their ship. It is important that judges, when they realize that one of the parties is really not cooperating as fast as possible, the judge can decide that we’re going to move forward. I give you this date to come before us.

Honourable senators, when we prepared our report on Delaying Justice is Denying Justice, we heard, in camera, associate Chief Justices in many regions of Canada. In all our discussions and exchanges, they requested that additional power because they said if we really want to move things forward, we need to have the capacity to decide. That is one of the key elements —

[Translation]

The Hon. the Speaker pro tempore: Your time has expired, Senator Joyal. Are honourable senators willing to grant five more minutes?

Hon. Senators: Yes.

[English]

Senator Joyal: I will go quickly, honourable senators. Of course, the other reform, which is especially important, is about jury selection. I’m looking at Senator Batters, who was very much involved in discussion at committee. In jury selection, there is a peremptory refusal. You have seen movies. The lawyers are there and they say, “I refuse this person.” They do not need to give any reason. We removed that from the code. If there is a reason to refuse a candidate for jury selection, it is the judge who will decide if they accept the person, yes or no.

Honourable senators will understand that those changes are pretty important. The committee was mindful in making sure those changes would reflect the other sections, the other dynamics of the code. We realized, for instance, in that context, there was no protection for obtaining DNA proof or fingerprinting when we were reclassifying the offences. We were losing the capacity to put DNA in the bank or to have fingerprints in the bank. The committee amended the code to make sure that what we were doing in reclassifying the offences was in sync with the protection of the DNA and the fingerprints.

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The committee also amended the bill to allow for the refusal of preliminary inquiry — the objective of the code. If the two parties, the Crown prosecutor and the defence lawyer, agree to request a preliminary inquiry, they could obtain authorization from a judge for a preliminary inquiry; or one or both parties could obtain such authorization. This provides more flexibility, rather than just wiping it out. In order to expedite the trial process, I think the committee was wise to introduce this in the bill.

On the other elements of the bill — and I say this while looking at my colleagues who introduced these elements — two other sentencing principles were introduced at section 718.2 of the Act. I don’t want to recite to you all the subparagraphs.

Honourable senators, I can’t resist saying that when I was a student lawyer, we had to learn this by heart. During the bar exam, a question could be: According to section 718.2(e), here is the question.

So you had to know. You could not use your computer or anything; you had to know the code almost by heart. Of course, today it’s another world, but I just wanted to remind you of that.

In the context of new sentencing principles, it was suggested that we must take into consideration victims of intimate partner violence in order to determine the sentence, be they Indigenous women or other vulnerable groups of women. That is an important element. If you read the report of missing and murdered Aboriginal women and girls, it is one of the recommendations put forward by the commission last week.

Honourable senators, I also want to bring to your attention the victim surcharge. Last year, in a decision called Boudreault, the Supreme Court declared the surcharge unconstitutional, in breach of section 12 of the Charter. Amendments were introduced by Senator Sinclair to ensure flexibility in the imposition of the surcharge so that there is no undue hardship, and to take into consideration the seriousness of the offence, which also inserts some common sense into the imposition of the surcharge.

On the observation, honourable senators, I will stress — I’m sorry. I will conclude on this, honourable senators. I know my colleague Senator Boisvenu will be able to complete the observation. I thank you for your attention, honourable senators, to this complex legislation.