Criminal Code—Youth Criminal Justice Act

Bill to Amend--Message from Commons--Motion for Concurrence in Commons Amendments and Non-Insistence Upon Senate Amendment Adopted

June 20, 2019


Hon. Peter Harder (Government Representative in the Senate)
[15:48]

Moved:

That, in relation 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, the Senate:

(a)agree to the amendments made by the House of Commons to its amendments;

(b)agree to the amendment made by the House of Commons in consequence of Senate amendments 3 and 4; and

(c)do not insist on its amendment 10, to which the House of Commons disagrees; and

That a message be sent to the House of Commons to acquaint that house accordingly.

He said: Honourable senators, I rise today to speak to the message from the other place on Bill C-75, an important bill that amends the Criminal Code and the Youth Criminal Justice Act in order to address the urgent issues of delays in the criminal justice system.

Allow me to thank Senator Sinclair for his sponsorship of this bill and for steering this legislation through the Senate. I would also like to thank members of the Standing Senate Committee on Legal and Constitutional Affairs for their detailed consideration of this bill.

Bill C-75 has been considered and debated in this chamber in a comprehensive and vigorous manner. The Senate has proposed 14 amendments for the other place to consider, 10 of which have been accepted.

The substantive Senate amendments that the other place has supported include: First, Senate amendment No. 1, which would maintain the availability of DNA orders for the indictable offences punishable by a maximum of five and ten years of imprisonment and Bill C-75 proposes to hybridize.

Second, Senate amendment No. 2, which would make a minor amendment to respond to the March 28, 2019, decision of the Supreme Court of Canada in R v. Myers.

Third, Senate amendments 5, 8, 9 and 12b, which would re-enact a new victim surcharge regime that would provide greater judicial discretion to depart from imposing the surcharge in appropriate cases.

Fourth, Senate amendment No. 7, which would expand Bill C-75’s aggravating factor for intimate partner violence, or IPV, to include IPV committed against a member of the offender’s or the victim’s family, and creating a new sentencing principle to require courts imposing a sentence for an IPV offence to consider the increased vulnerability of female victims, giving particular attention to the circumstances of Aboriginal female victims.

Fifth, Senate amendments 11, 13 and 14, which would amend the Identification of Criminals Act to clarify that fingerprints can be taken for an accused who has been charged with a hybrid offence, even where the Crown has elected to proceed by summary conviction.

Based on the same concerns that prompted our approach, the other place has proposed two amendments on Senate amendments 3 and 4 on preliminary inquiries, as well as one consequential amendment.

Honourable senators may recall that Bill C-75, as introduced, proposed to restrict the availability of preliminary inquiries to indictable offences punishable by life imprisonment, which represents 70 offences. The Senate proposed to expand the availability of preliminary inquiries on a discretionary basis to the 393 other indictable offences in two circumstances: First, on the consent of the parties and where a justice is satisfied that appropriate measures were taken to mitigate the impacts on any witness likely to provide evidence at the inquiry, including the complainant; or, second, where one party requests an inquiry where the justice is satisfied the criteria were met, i.e., mitigation measures have been taken for witnesses, and that it is in the best interest of the administration of justice.

Though the other place has not supported this amendment, it has accepted the underlying principle — namely, to make preliminary inquiries available for offences carrying the most serious penalties — but has chosen instead to expand Bill C-75’s original approach to allow preliminary inquiries not only for indictable offences punishable by life imprisonment but also for indictable offences punishable by 14 years of imprisonment, which represents an additional 86 offences. This proposal would be consistent with the consensus achieved by the 2017 federal-provincial-territorial Ministers of Justice to restrict them to “serious offences” and would respond to stakeholder concerns to make preliminary inquiries available for more offences.

The Senate amendment would have introduced uncertainty as to whether a preliminary inquiry would be held for 393 offences and would likely have resulted in significant litigation to determine the scope of the criteria and would have added a step to the criminal justice process to determine whether a preliminary inquiry should be held. This would have likely resulted in further delays rather than reducing them. Given the other place’s concern with this Senate amendment and the underlying reasons that prompted their approach, I’m pleased with the way it has chosen to respond to these stakeholder concerns.

Honourable senators may recall that Bill C-75, as introduced, would modernize and streamline the scheme for the classification of offences in the Criminal Code by hybridizing indictable offences that carry a maximum penalty of imprisonment of 10 years or less, creating a uniform maximum penalty of imprisonment for all summary conviction offences of two years less a day and increasing the current limitation period for all summary conviction offences from 6 to 12 months. These amendments are a key part of the legislative reforms identified by federal, provincial and territorial ministers of justice to reduce delays in the criminal justice system.

Bill C-75, as passed by the other place, included an amendment made by the Standing Committee on Justice and Human Rights to the reclassification provisions of the bill. Specifically, the justice committee proposed amendments on agent representation in section 802(1) of the Criminal Code. This amendment will facilitate agent representation by giving provinces and territories additional flexibility to establish criteria for agent representation for summary conviction offences with a maximum penalty greater than six months imprisonment, in addition to their existing ability to establish a program and will allow agents to appear on any summary conviction offence for the purpose of adjournment proceedings.

These amendments maintain jurisdictional flexibility in this area of criminal procedure, while also recognizing regional diversity in how legal representation is regulated across Canada.

Senate amendment No. 10 proposed to further amend section 802(1) to also allow agent representation as “authorized by the law of the province.” As honourable senators know, Bill C-75 is the product of considerable consultation with provinces and territories. The other place does not accept this amendment, as there has not been sufficient time to analyze and ascertain what its effects would be under existing provincial and territorial laws. There is also a concern that the Senate amendment may have unintended consequences. For example, the reclassification reforms would come into force 90 days after Royal Assent. This would not enable provinces and territories to make any legislative changes if needed. Moreover, provinces and territories already have flexibility to quickly address any consequences of the reclassification scheme on agents through the amendments made to the bill in the other place last December. Using the proposed new power to do this through criteria or a program established by the Lieutenant Governor in Council is a faster process than legislative reform.

Honourable senators, through thoughtful amendments this place has improved the bill to a great degree. I now ask honourable senators to accept the message from the other place. It represents significant criminal law and procedural reforms, many of which are long overdue. In accepting this message, Parliament will have passed legislation that will contribute to modernizing the criminal justice system, reducing delays and ensuring the safety of Canadians. Thank you.

Hon. Pierre-Hugues Boisvenu
[15:57]

Honourable senators, I’d like to say a few words before I give my speech.

I want to thank and congratulate Senator Joyal for his excellent work as Chair of the Standing Senate Committee on Legal and Constitutional Affairs. Since he will soon be leaving us, I also want to thank him and say I’ve enjoyed working with him for the past 10 years.

I want to tell everyone in this place how much all members of the committee saw Senator Joyal as a neutral, inspiring member with an excellent knowledge of the law. I’m so appreciative of the work he did in recent months, and in particular the monumental work he did on Bill C-75.

This bill could have been a positive start to the reform of the Criminal Code. Everyone, including legal experts, agrees with me that we need to reform the Criminal Code. In some respects, the Criminal Code has become a mess that can be hard to untangle. What could have initiated a reflection on the Criminal Code ended up being, in my opinion, a half-baked political exercise.

The proof is that 118 offences that were previously criminal offences will become hybrid offences and possibly lead to summary convictions, which could result in significantly reduced sentences. In fact, we found several measures in the bill that would make it no longer possible to identify people charged with summary conviction offences in the National Sex Offender Registry.

The amendment proposed by my colleague, Senator McIntyre, opened the eyes of the Minister of Justice to a huge flaw in the bill. This just shows how the bill was hastily thrown together and why it could not meet its objectives.

Clause 339 of the bill, which is basically identical to a clause in Bill C-452 dealing with sexual exploitation and trafficking in persons, provides that, for Bill C-75, the Minister of Justice’s prerogative to issue an order-in-council to implement clause 389 has been retained.

I remind you that this clause deals mainly with sexual exploitation, the fastest-growing crime in Canada. The government could have passed Bill C-452 at some point in the past four years. Yet, it did not do so. Every week, dozens and dozens of young girls and minors fall prey to sex trafficking. Bear in mind that in Montreal alone, 600 pimps have been arrested and charged since 2012, and that’s just the tip of the iceberg. There are 2,000 to 3,000 pimps out there exploiting minors and wreaking untold harm. This bill should have ensured that clause 389, which eliminates consecutive sentences for individuals who participate in human trafficking, came into force as soon as the bill passed. This was something many victims had called for, but their wishes were ignored.

I also think all the provisions relating to domestic violence should have been reviewed. I’ve said it before, and I’ll say it again: every year, 60 to 70 women and girls are murdered in Canada by their partners or former partners. Many of these murders could have been prevented if justice had not been so lenient towards these men. Under this bill, the first episode of domestic violence won’t trigger strong penalties, only the second will be judged more harshly. That is totally unacceptable. When this proposed amendment was discussed in this chamber, most of the independent senators voted against it, including many women. I just don’t understand.

I believe this bill could have been very useful. However, parts of it will have to be fixed, and I think that should happen sooner rather than later. Thank you.

[16:02]

I may have misheard Senator Boisvenu. I thought he was making a motion. No? My mistake. I may have misheard you.

I only have a few brief comments, honourable senators. The message back from the house has caused two significant changes to the amendments that were approved by the Senate that colleagues should be aware of. One is the agency amendment. It reduces the ability of the agency to be more accessible to those charged with summary conviction offences, but it does not do so in such a significant way that it eliminates it entirely.

While I have concerns about the fact that this may contribute to delays and other problems within the criminal justice system, I am prepared to live with the government’s position with regard to that particular amendment.

In addition, the decision to expand the role of preliminary inquiries that has been contained in their message back from the house also causes me concern, not the least of which is because I already enunciated my position, generally with regard to the utility of preliminary inquiries.

I also pointed out that in the Senate report on court delay, it talked about the fact that we needed to take more seriously the impact that preliminary inquiries were having upon court delay. In particular, when one looks at the time limitations that have been placed upon trials of indictable matters, being a maximum limit of 30 months, and the potential for more accused to have their charges removed because they have had some delay with regard to their trials caused by preliminary inquiries is also a matter of some concern.

I accept the suggestion of the fact that there would have needed to have been an application made to a judge to expand the possibility of preliminary inquiries for certain offences, which might also contribute to delays. I think in this particular case, as an institutional body, we should keep an eye on the question as to whether those changes the government is making to this particular set of amendments that the Senate approved will, in fact, reduce delays or not.

Overall, while I was supportive of the amendments that went over and I have concerns about these two particular amendments, I nonetheless am still prepared to support the motion to send the message back that we would accept the house amendments but with a recommendation to us as senators that we need to keep an eye on the question of whether those changes and the bill overall contributes to or reduces court delays. Thank you.

Hon. Pierre J. Dalphond
[16:05]

I just want to take a few minutes to say that the government’s response to Bill C-75 seems completely acceptable to me and that we should accept it. The bill hybridizes many offences that are currently under-prosecuted. It will broaden the network of offenders that could be convicted in the future. We talked about how the committee refused to implement another act that would provide for cumulative and consecutive sentences, in addition to minimum sentences, since the Department of Justice believes that such amendments would be unconstitutional.

Yes, the committee refused to do that because, yes, the committee believes in the Charter of Rights and Freedoms. Yes, the committee refused to implement an unconstitutional measure.

We talked about family violence. Yes, the committee refused to place on those accused of violence for the first time the onus of proving that they should be released rather than having them be subject to the usual rules under which that onus is placed on the Crown. Yes, that is what we decided because to do otherwise would be unconstitutional. That’s what we heard from the witnesses. Today, some senators are saying that the committee didn’t do its job, but that’s not true. The committee did its job and refused to make an amendment that would have made the act unconstitutional.

We talked about sexual violence. We heard from police officers who told us that the way the current act was drafted meant that very few cases are brought to court. The bill creates a presumption regarding the exploitation of one person by another, easing the Crown’s burden of proof. All the police officers who appeared before the committee told us that this amendment was an improvement.

I wanted to clarify the comments made by my colleague, Senator Boisvenu. I have no hesitation whatsoever in supporting the government response even if it excludes one of my amendments dealing with preliminary inquiries — although it accepted all the others. I felt that the restriction proposed by the government was too drastic.

I’m pleased that the government understood the message sent by the Canadian Bar Association and many defence lawyers from Ontario and elsewhere who testified before our committee. The list of offences that can now have a preliminary inquiry has been expanded. Overall, I think the government made an excellent choice and I support its response. Thank you.

The Hon. the Speaker pro tempore
[16:08]

Will you take a question?

Senator Dalphond
[16:08]

Of course.

Senator Boisvenu
[16:08]

Senator Dalphond, forgive me if I don’t share your optimistic perspective. Why did the government refuse to remove the coming-into-force order for Bill C-452, which was passed in 2015, from Bill C-75? Since its passage, it has caused hundreds and hundreds of minors to fall victim to sexual exploitation. Why wasn’t this section brought into force immediately to prevent the sexual exploitation of other minor victims?

Senator Dalphond
[16:09]

Thank you for that interesting question. The answer came up in committee. Bringing that act into force would have resulted in an unconstitutional situation. An act found to be unconstitutional because of the cumulative effect of minimum sentences and cumulative sentences is in violation of the Charter. The government said it needed time to review all of the provisions that allow for both minimum sentences and cumulative sentences at the same time. That process is still under way. The committee wisely decided not to take my colleague’s suggestion.

Senator Boisvenu
[16:09]

Senator, the government had four years to figure out if Bill C-452 was constitutional or not. Four years! And you tell me it needs more time? How much time?

Senator Dalphond
[16:10]

Obviously I am not the Government Representative in the Senate. My role is limited to hearing evidence in committee. However, I am rather pleased to see that the mandate letters were acted upon over this four-year period. Granted, that may seem like a long time, but you will recall that this chamber took two years to ultimately oppose Bill C-337, which in fact wasn’t that hard to pass. Will the government be any quicker than our chamber?

The Hon. the Speaker pro tempore
[16:10]

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

Some Hon. Senators: Agreed.

An Hon. Senator: On division.

(Motion agreed to, on division.)