JUST Committee Meeting

     I call the meeting of the Standing Committee on Justice and Human Rights to order, it being Wednesday, May 2, 2007. I think everyone should have a copy of the agenda.

    The first item on the list, pursuant to the order of reference of Monday, October 16, 2006, is Bill C-23, an act to amend the Criminal Code on criminal procedure, language of the accused, sentencing, and other amendments, which is before the committee.

    Appearing this afternoon is the Honourable Rob Nicholson, Minister of Justice, along with some members from the Department of Justice. I will provide the opportunity for Mr. Nicholson to introduce them.

    Minister, you have the floor.

    Thank you very much, Mr. Chairman.

    You're quite correct, I'm very pleased to be joined by Ms. Anouk Desaulniers, senior counsel, criminal law policy section of the Department of Justice; and Marc Tremblay, general counsel and director of the official languages law group.

     I want to thank you, Mr. Chairman and members of the committee, for the opportunity to be back with you again as you begin your consideration of BillC-23.

    I note that during second reading debates, all parties expressed general support for Bill C-23. This bill introduces Criminal Code amendments to update, improve and modernize the law by enhancing the efficiency of criminal procedures, strengthening sentencing measures and clarifying court-related language rights provisions.

    Most of the changes brought about by BillC-23 are the result of our work with the provinces and territories as well as stakeholders. These participants and stakeholders in the criminal justice system have been influentual in helping us identify amendments that needed to be made, whether they be deficiencies, gaps, or ways to improve the criminal justice system. Bill C-23 contains a number of technical amendments that, among other things, clarify the meaning of certain provisions.

    The bill also includes amendments of a more substantive nature to update the Criminal Code in targeted areas of the code. There are over 40 clauses in Bill C-23, most of which are unrelated. I propose to simply highlight some of them for you today.

     Following this brief overview, I'd be pleased to answer questions that the committee members may have, with the assistance, of course, of the departmental officials.

    The amendments fall into three principal areas, namely criminal procedure, language of trial, and sentencing.

    With respect to criminal procedure, most of the amendments are technical and will, among other things, harmonize and consolidate provisions dealing with proof of service of documents, expedite the execution of out-of-province search warrants by taking advantage of technologies, improve the process with respect to the challenge of jurors to assist in preserving the jury's impartiality, identify the proper appeal route for judicial orders to return seized property, and clarify powers of some reconviction courts when a co-accused does not appear for trial.

    The Criminal Code amendments that are considered of a more substantive nature include: the right of an accused to change his or her mode of trial when the Supreme Court of Canada orders a judge and jury trial to be retried, or in cases where an indictment is preferred--that is, where the crown files the indictment directly with the Superior Court; the reclassification of the offence of possessing break-in instruments, which is currently a strictly indictable offence, to a dual procedure to allow the prosecution to elect to proceed by way of indictment or way of summary conviction procedure; and the creation of a corresponding offence for the breach of a non-communication order imposed on an accused who is remanded to pre-trial custody.

    With respect to language rights amendments, sections 530 and 530.1 of the Criminal Code guarantee the right of all accused persons to have their preliminary inquiry and trial before a court that speaks their official language. These sections also provide that the Crown prosecutor conducting the prosecution must speak the language of the accused.

     These rights have been enforced throughout Canada since January 1, 1990. Canadians have told us, however, that there are still obstacles to full, complete, and equal access to the criminal justice system in one's official language. Court decisions as well as reports by different stakeholders also confirm the need to improve and clarify the current language-of-trial provisions.

    The courts have indeed had to wrestle over the years with a number of issues with regard to the proper interpretation of these provisions and their decisions highlight the need for some fine-tuning.

    The purpose of these amendments is therefore to ensure a better implementation of the language-of-trial provisions as well as rectify some of the shortcomings identified in a number of studies and by the courts. For instance, one amendment would heed the advice given by the Supreme Court of Canada by requiring courts to inform all accused persons of their right to be tried in their official language, whether they are represented by counsel or not.

    The Commissioner of Official Languages, in a 1995 study entitled “The Equitable Use of English and French Before the Courts in Canada”, had also recommended that all accused be better informed of their right to a trial in the official language of their choice.

    Another amendment will require that the charging document be translated into the language of the accused upon request. This follows court decisions requiring that such an important document be translated upon request, since it is a logical complement to the accused person's exercising their language rights. Where the charging document has been translated, a further amendment would make clear that where there is an inconsistency between the original version of the document and a translated version, the original charging document would prevail.

    Another proposed amendment would provide the presiding judge with the power to issue appropriate orders to contribute to the efficient conduct of bilingual trials. The absence of such provisions has led to fruitless debates, and it is time to bring greater efficiency to such proceedings. Other amendments simply resolve certain anomalies and problems identified with the existing provisions.

    On the whole, these amendments bring the language-of-trial provisions of the Criminal Code in line with the judicial interpretation, while also removing some of the hurdles on the road to greater access to justice in both official languages. Under the sentencing portion of the bill, technical as well as substantive amendments have also been put together to respond to current realities or to fill certain gaps. For example, one technical amendment provides for sentencing courts to suspend a conditional sentence order or a probation order during an appeal.

    Another amendment will remove uncertainty regarding the application of impaired driving penalties. One such important amendment will clarify that the minimum fine and minimum jail terms that apply for a first, second, and subsequent impaired driving offence, such as operation of a motor vehicle while impaired and refusal to provide a breath sample, do apply to the more serious situations of impaired driving causing bodily harm. The legislation will make it clear that repeat impaired driving offenders whose new offence causes death will have a mandatory period of incarceration and will therefore not be eligible for conditional sentence of imprisonment.

    The more substantive changes in Bill C-23 propose to provide courts with the powers to order an offender not to communicate with identified persons while in custody, delay sentencing proceedings so that an offender can participate in a provincially approved treatment program, order the forfeiture of computers and other things used in relation to the offence of Internet luring on application by the attorney general after an accused has been convicted of that offence, order that a driving prohibition be served consecutively to any existing prohibition order, and impose a fine of up to $10,000 for a summary conviction offence where no other maximum fine is provided in a federal statute.

    With respect to this last amendment, Mr. Chairman, I recognize there have been concerns raised by some honourable members during the second-reading debate. I would like to say that this government is prepared to work in collaboration with committee members regarding this clause as well as with respect to other issues that may arise during the consideration of the bill.

    As I mentioned, Bill C-23 was developed in cooperation with our provincial and territorial partners as well as legal experts. Provinces and territories and other justice system stakeholders are keen to see this bill enacted, as it will improve the effectiveness and access to the criminal justice system.

    I would be pleased to respond, with the assistance of my officials, to any questions the committee members might have.

Indeed, given the technical nature of many of the amendments, the expertise of our officials will be particularly relevant and helpful.

    Thank you, again, Mr. Chairman.

    Thank you, Minister.

    I know that you're on a very tight time schedule today.

     I would just advise the committee that the minister will be leaving at approximately 4:25. It's unfortunate, but he does have another meeting to attend, which is time-sensitive.

    Welcome, Mr. Maloney and Mr. Norlock, to the committee.

    Now I'll turn the questions over to Mr. Bagnell.

    Thank you.

    I'm going to share my time with Mr. Lee.

    We haven't had a groundswell of complaints about this bill, as you can probably imagine, so I have just a couple of very simple questions.

    Maybe staff can say roughly how long this bill has been in preparation.

    I know it was introduced, I suppose, about seven or eight months ago now, but prior to that, Monsieur Tremblay, do you know how long?

    It's been a few years now in preparation. From the official languages perspective, in particular, we've been working on this since the 1995 study by the Commissioner of Official Languages. There's been a long history of various steps taken, but it's been that long in development.

    Okay.

    It was introduced June 22 of last year by the previous Minister of Justice.

    Okay, thank you.

    Just in a totally non-partisan way, maybe you could outline, both Minister and staff, if there have been any issues that groups or the public might have brought up about the bill, technical issues or others.

    One concern or question raised by honourable members was with respect to the maximum penalties for summary conviction offences where it has not been specified in legislation. That was certainly one of the issues. For my part, I haven't had a lot of feedback, quite frankly. I don't think that should be too surprising. I know that from time to time Parliament puts together some of these amendments, when the need arises or when it has been brought to the attention of the department, and these help let the court system run more efficiently. They expedite the process, so these are generally welcomed by everyone in the judicial system.

    I totally agree with you. I haven't had anything either.

    I'm just wondering if the department members of the legal community that you work with know if there have been any issues.

    Most criminal law amendments come from resolutions which were passed at the Uniform Law Conference of Canada. As you probably know, it is a forum for provincial Crown prosecutors, defence bar representatives and sometimes judges. Most of the amendments come from resolutions which were passed by a large majority of members of this group.

    With respect to sentencing, criminal law amendments are developed by the Federal-Provincial-Territorial Working Group on Sentencing.

    Thank you.

    The language trial amendments were the object of many discussions. As I mentioned, there were studies by the commissioner that highlighted a certain number of areas that needed improvement. Many of the proposals here are direct responses to those.

    To provide you with the most information possible in the shortest time, I think it's fair to say that these amendments are part of a balancing process. On the one hand there is the drive to constantly improve the justice system with respect to access to justice in both official languages, and many of the proposals go in that direction. On the other hand, there are efficiency questions as well as practicality questions that arise interjurisdictionally. The provinces, in some respects, had reservations with some of the proposals being put forward. To take one example, which the committee will very likely hear from the Commissioner of Official Languages, Mr. Fraser, when he appears, there has been pressure to extend the language-of-trial provisions to appeals. The jurisdictions essentially responded that they are unprepared and unable to provide for access to criminal trials on appeals in both official languages because that would require bilingual appellate courts.

    It has been an issue of giving the provinces some assurances in terms of greater efficiencies and benefits in the process, as well as advancing the interest of access to justice in both languages in a balanced fashion.

    Is there anything left in the bill or the amendments that would leave the onus on the accused to access the official languages right? What I'm trying to get at is whether we've put enough protection in the bill that he's going to officially be provided that right and he wouldn't be unaware of that right by accident.

    It's interesting that you should raise that. There is one provision, and I think it's a good one. The right to be informed of your right to have a trial in either official language is provided for individuals who are unrepresented by counsel. I guess the assumption was that lawyers are supposed to be smart enough to inform their clients. No doubt lawyers are smart enough to do that; I'm not casting aspersions on the legal community. But we don't want to leave it to chance, so one of the amendments before you requires that all individuals, whether they have counsel or not, be informed of their right to have a trial in either of the official languages. I, for one, like that idea.

    It doesn't specify in what way that can be done. It can be done in terms of the judge orally informing the individual. It could be done in terms of documentation that's given to him. There's a combination of things, I suppose. I mean, documentation signs could be posted.

    Again, that proposal seems to be a good one, so it's not left to chance. Most lawyers do provide that information to their clients, but why leave it to chance? I think that amendment addresses the concern you've raised.

    Thank you, Mr. Bagnell.

    Mr. Ménard.

    I'll begin by announcing that I will be tabling an amendment as a result of what we heard from certain witnesses regarding the GPS, specifically, vehicle tracking warrants. You raised the issue of telewarrants, and this aspect would need to be harmonized with the one-year wiretapping warrant. In any event, I could send my amendment to the parliamentary secretary, who can show it to you.

    With respect to the language of the accused, I would like to know whether this bill is supported by the Commissioner for Official Languages. He will be appearing before us tomorrow, but I would like to know whether he officially supports this bill.

    Also, it seems to me that there may be some possible gaps in the bill, which is a concern. From my understanding, the bill would allow the prosecution, during the trial, to cross-examine a witness who does not speak the language of the accused. Will this type of provision now be authorized? What effect will this have on the requirement to provide interpretation services?

     Thank you very much, Monsieur Ménard.

    I think you indicated, with respect to your first question, that you would provide or perhaps have provided the parliamentary secretary to the justice minister with some of the background with respect to your amendment. And of course he and I and I'm sure all committee members will have a very careful look at that.

    With respect to what the official languages commissioner will say, I certainly don't want to pre-empt him or even try to conclude what he would say. I believe he will indicate that the steps that we have moved forward on are positive developments. And in his advocacy role, I am quite sure that like all advocates, he may say—again, I'm not putting words into his mouth—that he might like to see further changes into the future. But, again, with respect to the amendments that you have before you, I believe he will indicate that these are positive developments.

    With respect to the third issue that you raised, with respect to cross-examinations, there are provisions with respect to the cross-examinations in a trial. I would ask Monsieur Tremblay to provide you with some of those details for your edification.

    Yes indeed, the provisions and proposed amendments would clarify the right of the accused. I should point out that this right is not constitutional in nature. It is a right which you, as parliamentarians, will confer upon the accused. During our consultations, not only with official language communities and the Commissioner for Official Languages, but also with Crown prosecutors who must effectively prosecute in the interest of public safety, we noted that it was important to them to obtain the best possible evidence in a country where there are bilingual individuals, people like myself, for instance, who could very well testify in either official language and take advantage of the situation. For instance, I could ask for questions to be put in the language of the trial, for instance English, and yet I could also ask for an interpreter. There is a period of time during which the interpreter interprets the information for me, giving me an opportunity to tailor my responses not in the interest of telling the truth, but based on my considerations as a witness.

    Federal and provincial prosecutors saw this as an important issue. We should point out that this authority is granted to a judge in the context of ensuring the rights of the accused, which must be upheld. The judge must consider this factor, whether it would be appropriate to issue and order, and whether there has been sufficient debate on the issue between parties; he has the authority to issue this order.

    I have one final question, Mr. Minister. Fines for summary conviction offences will be raised from $2,000 to $10,000. Obviously, this is a concern for poverty advocacy groups. Why is this? Why $10,000? Is this not a significant qualitative step? I am appealing to the social democrat in you who is just waiting for the opportunity to speak. Isn't this somewhat abusive?

    I don't know if it's abusive. I wouldn't agree with you, Monsieur Ménard.

    I think it's probably overdue that we revisit this. I believe it was in 1985 that it was raised from $500 to $2,000, and it has not been changed since that time. We are proposing to move it from $2,000 to $10,000, but as I indicated to you in my opening remarks, I am prepared to listen to the deliberations of this committee.

    I see Monsieur Godin here. His colleague has already indicated that he would like to see a different amount, and I won't put words in his mouth, but I believe he was looking at a maximum fine of $5,000. I will indicate to you, at this time, that I certainly would be prepared to look favourably on that if it works towards expediting this bill, which, as I indicated in my opening remarks, seems to have widespread support. I would certainly have a look at that.

     Thank you, Mr. Ménard.

    Mr. Godin.

    Thank you, Mr. Chairman.

    First off, I'd like to welcome you to the Standing Committee on Justice and Human Rights. This is not a committee I usually sit on, but since we're talking about official languages—

    I should almost welcome you to the committee, Monsieur Godin.

    Clause 531 reads as follows:

    Thank you, Monsieur Godin.

    I didn't raise a question yet. You probably have the answer. I'll let you go.

    I heard your concern. I'm sorry, please continue.

    Are you asking with respect to the change of venue for trial, why we are doing that?

    I'll indicate to you some of the information that I had on that. I guess your concern is why would we permit a change of venue when a trial cannot be held in one of the official languages of this country in a particular territorial division?

    The provision that's been in force since 1978, and Bill C-23 does not in any way change the provisions with respect to a change of trial, is simply to clarify the language. Again, there's been no change with respect to the provisions that exist in the Criminal Code. Our attempt was simply to clarify, but maybe I didn't get the import of your question.

    Go ahead.

    I disagree. Clause 531 would seem to me to imply that from now on an accused will have to go to a territorial division other than his own for a hearing. That's what it means.

    Do you recall the letter dated April 2, 2007 sent to you by Ms. Louise Aucoin from the Fédération des associations de juristes d’expression française de common law? New Brunswick, for instance, is a province which is officially bilingual. Trials take place in the region of the accused. Under this bill, the Court could tell an accused to go to Fredericton for a hearing. There is nothing to prevent that. Why would francophones from Manitoba be forced to go to Winnipeg to have their cases tried? Why wouldn't the courts go into the regions, as should normally be the case?

    I am not saying that you are not telling the truth, but I do not know if your interpretation of this provision is right. If I am not mistaken, the purpose was to change the legislation to make it more flexible and perhaps increase the number of courts where people could have their trials held. However, if that were the case, a francophone individual from Manitoba would have to pay out-of-pocket to go to court, when courts should be going into the regions.

    Obviously, it's a question of resources, Monsieur Godin.

    One of the things that is absolutely vital is that the individual is entitled to have his or her case heard in the language of their choice. The provisions have been in the Criminal Code since, I believe, 1978, and they do provide that where, for a number of reasons, the facilities aren't there in some parts of this country to provide a trial in the language of choice of the individual, there are provisions that they can be moved.

    In your case, you said--

    I'm sorry, Mr. Chairman, but clause 531 would dictate that from now on courts are not required to travel and individuals must always pay. There is no limit to that.

    Mr. Godin, you may borrow my colleague's Criminal Code and look at the current provision.

    I am not a lawyer and it would be nice if she could find it for me. All right, section 531 is easy to find.

    She will find it for you and I will speak to you at the same time. I will quickly read the current section:

    What is the difference between the two?

    The difference is that we have a long phrase which I read quite quickly because I repeat it almost daily in the course of my work and which states: "[...]an order... before a justice of the peace, provincial court judge, judge or judge and jury who speak the official language of Canada that is the language of the accused[...]". It was replaced by: "If an order made under section 530[...]". So, we've taken a long phrase which is repeated in the Criminal Code on several times to define the three types of orders which may be made, and, to lighten the Code a bit, we summarized it in a few words.

    If section 21 were struck from the bill further to this committee's deliberations, the same option to obtain such an order that has been in existence since 1978 would remain, for the reasons expressed by the minister.

    You must understand that this provision corresponds to the needs expressed by the provinces, and to their respective realities. The circumstances in New Brunswick are quite different from those in Manitoba or B.C. This provision meets the provinces' needs, but it does not prevent New Brunswick or Ontario from holding trials in each legal district, as is currently the case. However, in Manitoba, where the province and the minority are calling for an itinerant court—the minority is asking for this—the province has the needed flexibility to manage the administration of its own justice. So, essentially, nothing has changed.

     Thank you, Mr. Godin.

    Mr. Moore.

    Thank you, Mr. Chair.

     I'll be splitting my time with Mr. Dykstra.

    Minister, on the issue of forfeiture of equipment dealing with luring, we've been hearing a lot about Internet luring and the luring offence in our deliberations on some of the bills that have been before the committee. We also had a private member's bill that came before the committee dealing with luring.

     All committee members are taking this issue quite seriously, so I'm interested to hear about the issue of equipment forfeiture. I know that when dealing with child pornography there can be forfeiture of equipment. I see in this bill that we're extending this to deal with Internet luring. Could you or your officials please comment a bit on the significance of that?

    Thank you very much.

    You pointed out one of the significant amendments we are making in this bill. Certainly this brings the bill into line with what I believe most people would find reasonable. Quite frankly, it updates and covers off a gap, if you will, in the Criminal Code.

    What it allows for is that if an individual has been convicted of Internet luring, there could be an order for the seizure, in this case, of the computers. It makes sense. And as you indicated in your opening question, there are offences that provide for seizure of whatever was used in the commission of an offence.

     I think most Canadians would think it's a reasonable extension that computers and other equipment used in that particular offence should be subject to seizure.

    Madame Desaulniers, did you have anything to add on that?

    There is already indeed a system in place for the seizure of offence-related property. The amendment allows for the seizure of a computer used to commit an offence, even a summary conviction offence. As you know, for the time being, provisions on offence-related property apply when offences are dealt with by way of indictment, so for the more serious offences, but we consider that when a computer is used to commit an offence, whether it is serious or less so, the Court should have the authority to seize this computer.

     Thank you, and I think that's a great move.

    On the issue of the possession of break-in instruments, I know in my riding, which has some suburban and also rural areas, break-and-enter is a major issue. We know that it's being done by a small number of people, but in many cases, as we've heard in testimony here at committee, sometimes it's a small number of individuals who can create a lot of havoc in communities both large and small.

    I note that Bill C-23 makes possession of break-in instruments a hybrid offence. I'm wondering what the significance of that is. What can we report back to our constituents on that being made a hybrid offence?

    I think it gives the crown some flexibility in judging the seriousness of the offence. It certainly makes it consistent with the offence itself of breaking and entering, which is, as you may know, a hybrid offence. The existing situation where the possession of the tools for that is an indictable offence, while commission of the offence is a hybrid offence, is again a bit of an anomaly and one that we want to correct.

    Obviously, Mr. Moore, you know from our record and the legislative agenda we have introduced into Parliament that we take the commission of all crime very seriously, and we certainly want to convey that message. In a case like this.... Feedback the department has received on this is that it certainly would make the law more consistent, and in the end we do rely on crown attorneys across this country to get it right in terms of prosecutions. I consider this a fairly minor amendment to harmonize the existing law and one that I think will continue to work quite well in favour of the people of this country.

    Thanks, Minister.

    I will turn the rest of my time over to Mr. Dykstra.

    Thank you.

    We spent a good deal of time reviewing estimates last week, and certainly I bring that back to today in talking about the efficiencies of this bill and whether or not we'll actually be able to achieve some long-term financial efficiencies as a result of moving this forward. From what you've said, there are obvious efficiencies in process here. I wonder if you might be able to comment on that.

    Thank you very much, Mr. Dykstra. I am pleased to comment on that.

    To the extent we can make changes that help improve, as you say, the efficiencies of the courts, this is a good idea. It saves money, saves time, it makes our system work better. What happens is that we at the Department of Justice get these suggestions that are made to us and we try to put them together and put them into a bill like the one you have before you. This has been consistent with the practice over the years.

    I was a member of this committee for nine years, and I believe on at least three or four different occasions we were given bills that had a look at anomalies, inefficiencies, and gaps in the existing legislation, and we tried to put it together. I can't speak for this bill, but certainly when I had the opportunity to look them over, they sometimes weren't always the most exciting or the most dramatic changes to the Criminal Code, but my view was that it was a necessary part of the legislative process to have a look at these things. I believe we can all take some satisfaction that it helps to improve the Criminal Code. These are generally welcomed by practitioners and people who are involved with our criminal justice system.

    For the reasons you indicated, it's a step in the right direction on just what you said, the efficiencies to make the court system work a little better, and we all have a stake in that, quite frankly. A system that gets bogged down or moves more slowly and doesn't adequately protect people's rights or give them access to an expeditious hearing is a challenge for us, but we try to meet that, and certainly the bill that you have before you is a component of what we're trying to achieve.

     Thank you, Mr. Dykstra.

    Mr. Maloney.

    Thank you, Mr. Chair.

    My questions will be directed to clause 35, the delay of sentencing pending treatment.

    Are there consequences if the treatment is completed? Are there consequences if the treatment is not completed? Is there a measure of success required, and how would that be determined?

    Reference is made to addiction treatment and domestic violence. Are there other instances, such as anger management?

    How does this differ from current provisions that allow for a stay of sentencing subject to a probation order requiring participation in treatment?

    Thank you, Mr. Maloney, and thank you for your questions with respect to that provision.

    When I did my own review, of course, of this bill, that was a section I was particularly interested in, just for some of the reasons I think you indicated. It gives the judge an option to try to get some help for the individual. And in direct answer to your question, I believe it would make a difference, and I think that's the intent behind the provision. If an individual receives the appropriate treatment--and I'll get into that or perhaps have Madame Desaulniers comment on that--I believe it would then, of course, be taken into consideration.

    That's why there is the delay in the sentencing, quite frankly. If you were going to give the sentence to the individual and then try to get that individual some treatment, it seems to me you wouldn't have quite the incentive for the individual to try to get the help they need. So there is a provision, then, of course, according to this section, that would allow that. And I would expect the judge to take that into consideration.

    With respect to some of the other aspects of your question, I'll ask Madame Desaulniers to further comment.

    The provision as worded offers some guarantees. For instance, the prosecution and the defence must consent to this stay in sentencing.

    The advantage of this system and its effectiveness is related to the fact that when judges postpone sentencing, they give the accused a chance, but at the same time, they have a sword of Damocles suspended over the accused's head. Indeed, if the accused does not comply with the treatment or does not behave properly, when he appears before the Court for sentencing, the judge may take these factors into account. The judge can tell the accused that he gave him a chance, but that the accused missed his chance and in theory the judge could, in theory, impose a harsher sentence.

    This is different from imposing treatment on an accused in the course of his probation. When probation is ordered, the judge is no longer seized of the case because he imposed the sentence. To some extent, the accused has more freedom. He no longer has this sword of Damocles hanging over his head.

    Is it available only on a guilty plea, or after a finding of guilt, after a trial?

    Exactly.

    On both?

    Exactly--on both.

    Okay.

    C'est tout, Mr. Chair.

    Thank you, Mr. Maloney.

    Ms. Freeman.

    Good afternoon, Mr. Nicholson, Mr. Tremblay and Ms. Desaulniers. Thank you for your attendance here.

    I would like to ask you two or three questions. Possessing break-in instruments was, up until now, an indictable offence punishable by 10 years of imprisonment. You are making it a hybrid offence.

    Why is that? What is the purpose of this amendment?

     I can tell you that this suggestion was made in the form of resolutions presented by three provinces, on three different occasions, at the Uniform Law Conference of Canada. Prosecutors explained that the offence "possessing break-in instruments" was often committed at the same time as the break and enter into a place other than a dwelling house, which may be a summary conviction offence. Because it is a hybrid offence, it can be prosecuted by way of indictment or summary conviction.

    Because this offence of possessing break-in instruments could not up until now be prosecuted by indictment, Crown prosecutors who could not hold two separate trials and wanted to deal with both offences at the same time were forced to proceed by indictment, a more complex procedure. It requires a preliminary inquiry, perhaps a trial before jury, etc.

    We have often heard that these offences could be prosecuted by way of summary conviction and that it would be preferable to deal with them at the same time.

    Thank you.

    In the bill you also amended the peremptory challenges. This is under clause 26 of the bill. Can you explain to us how this new measure will improve jury impartiality?

    There is an attempt to mitigate certain risks like in the case of a challenge for cause. When there is reason to believe that a perspective juror may be biased, questions are asked in that regard. He will be asked, for instance, about knowledge of newspaper articles or media reports. It is possible, in asking these questions—usually the jury is present, the sworn jury and the other candidates in the room—for the person being questioned to provide an answer which may be very prejudicial to the accused. He could say, for instance, that he has already got an opinion on the accused's guilt because he heard such and such a thing on television. That is what we are trying to avoid.

    Very well.

    My final question has to do with gambling and bets. In this bill, you add provisions regarding the use of telecommunication tools—and I understand the purpose of that—but you do not address the issue of virtual casinos. In my riding, I am fortunate enough to have the Kahnawake Indian reserve, where there are virtual casinos. It is a serious problem for us. We are all aware of it, as we are of other problems like tobacco and arms smuggling, which are problems from a legal standpoint. I would like to know whether this bill addresses the issue of virtual casinos.

    No, the bill—

    Why not?

    This bill proposes amendments that we consider to be technical and minor corrections to be made to the current system. That particular amendment would apply in situations involving Internet betting. The other controversy you raised is a significant one, and we are working on it at the department. However, it has not been included in this bill, which is more technical in nature, and non-controversial.

    Thank you.

    Thank you, Ms. Freeman.

    Mr. Petit is next.

    Thank you. Good afternoon minister. Good afternoon Ms. Desaulniers and Mr. Tremblay.

    My question is rather simple, but I want to make sure that it has been properly understood. In Quebec, there's currently a huge ad campaign underway to prevent car accidents. We know that many car accidents are the result of drunk or impaired driving. Naturally, my government has proposed doing something about this. Because this issue is important, I would like for you to explain something. In Quebec, each year, many people die as a result of drunk driving, or driving under the influence of drugs, an issue that we will talk about later. Minister, you are the sponsor of Bill C-23, and I would like to know what impact it will bear on serious offences such as impaired driving causing death. That is the issue which is important in this bill, and one which is of great interest to me.

    Thank you very much, Mr. Petit.

    It actually clarifies some of the Criminal Code provisions that currently exist. At the present time it's been brought to our attention that it wasn't completely clear. Minimum sentences--and there are escalating sentences, as you know, with respect to impaired driving--did not also apply to the offence of causing death while being impaired. It seemed to me that this was an opportunity for us to clarify that yes, of course it does, because it only makes sense. That's the reason we are putting it in there.

    With respect to impaired driving, as you know, we have another piece of legislation before Parliament that is substantive in nature and helps clarify some of the issues with respect to impaired driving, in particular with respect to impaired driving as a result of a drug. You would of course be aware of that. I think it provides some of the tools that law enforcement officers have been looking for. It's of substantive nature and certainly underscores the government's commitment with respect to impaired driving. As you pointed out, this provision in this bill is more of a technical nature, and it's consistent with the philosophy of a bill like this.

    In answer to Madame Freeman's question, Madame Desaulniers pointed out that it's not meant to introduce either controversial or large substantial changes to the Criminal Code, because that would be more appropriate, in my opinion, for a stand-alone bill. This bill strictly deals with technical amendments. There are, of course, some substantive amendments that we believe are non-controversial, and we're hoping to move them through the system.

    Thank you, Mr. Petit.

     Mr. Murphy.

    Thank you.

    Thank you, Mr. Minister, for being here.

    This is a good bill. We believe in giving credit where credit is due. You're a very capable minister. You're just in the wrong party.

    That's a matter of opinion.

    Could I react to that, Mr. Chairman?

    You see, I want to get this bill through. You can throw anything my way at all. We want to move this legislation through, so you go right ahead.

    A point of order, Mr. Chairman. I've been very complimentary. I said he belongs with us, and that's the highest form of compliment, really.

    Absolutely, we are all in favour of that.

    On the face of it, this bill attempts to improve the linguistic aspects of this delivery of a product called justice.

    As you know, in New Brunswick, we have a bilingual judicial culture, as well as bilingual services. However, not all is perfect. I am happy that Mr. Godin is here to comment on this.

    In any case, during the process to improve this bill, several questions were raised regarding clauses 18 and 21 in particular. There seems to be a lack of clarity on what will occur when a justice decides to call an investigation or hold a trial in French or in English. How will the judge proceed upon deciding which language the hearing will be held in? Or upon deciding, at the start of a trial or investigation, to hear certain witnesses in French and others in English? I imagine that it would be very difficult for a judge to decide ahead of time, because one never knows what can occur during a trial. Mr. Petit is fully aware that it is very difficult to not only predict a result, but also the pace of a trial. Is there an example that judges could draw from in implementing the new provision, clause 531, which can be found in section 21 of the bill?

    Minister, before you reply, I would just note the time. I know you have a pressing engagement, so after your reply, feel free to leave.

    Thank you very much, Mr. Chairman.

    Thank you, Mr. Murphy, for your question.

    As you know, we are guided by the Supreme Court of Canada's decision in the Beaulac case. With respect to that case and the provisions that are currently provided for in terms of bilingual trials, we are guided by that.

    As you quite correctly pointed out, your home province of New Brunswick has a long history with respect to the handling of cases in both official languages, and certainly has been a model for the rest of the country, quite frankly.

    In terms of how a judge can make the decision in each particular case, that's part of the challenge that we have: to make it fair to all the individuals involved with that. That's the balance we try to strike.

    Monsieur Tremblay, would you like to add to that?

     Sure.

    There are various circumstances in which an order of a bilingual trial might be appropriate. They may be appropriate, for example, for a single accused who is a francophone in British Columbia. That was the case of Mr. Beaulac, and the Supreme Court commented favourably upon the order made by the courts in B.C. in his case. He was a francophone, but he was surrounded by witnesses and facts and evidence that were in the English language. So to have a trier of fact and a trier of law who could understand the evidence directly in both languages was the appropriate order, certainly in the Department of Justice's view and in the Supreme Court's view.

    There are other circumstances where you might have multiple accused or more than one accused who each requests and obtains and has the right to obtain a trial in their language and should be joined jointly, so a bilingual trial is in order then.

    So you have two very different sets of circumstances there, and right away, just by looking at those two examples, you can imagine that the types of orders the judge might want to issue at the beginning of a trial for a single accused would be quite different from those he might order in the context of a joint trial of accused who speak different languages.

    He may very well want, in the first case, to ensure--and I would argue that in keeping with the spirit of the provision he would have to order--that most of the trial take place in the French language. The provision allows for debate to occur with counsel present in court on what the appropriate order ought to be at the beginning of the trial. Likewise, in a bilingual trial there could be submissions made by counsel for each accused and an appropriate order made.

    Excuse me, Mr. Tremblay. I'll just excuse the minister now, and if you want to continue on with your explanation, feel free.

    Thank you very much. I appreciate the support this bill has generally received. I wish you well in your deliberations, and I thank our guests from the Department of Justice for all the help they are providing.

    Thank you very much. I'm sure I'll be back again soon before this committee, Mr. Chairman.

    Mr. Tremblay, continue, please.

    Did the minister's time come out of my time?

    Feel free. So you have another question?

    Well, it's the same question, because it's very important. Beaulac was fairly easy for us to all comprehend: that you have an island francophone, frankly, pardon the pun. I don't know if he was from Vancouver Island.

    Anyway, the point is that in New Brunswick, bilingual often means English. And I can see that this order in advance--I suppose it's something we haven't done yet, so we'll see the animal as it grows--must have to be subject to argument and amendment on an ongoing basis, although that's not the way this section reads.

    The other thing I'd like to bring to your attention, being somewhat experienced in bilingual civil trials, is that's often done by agreement, and there are far fewer points of appeal in a civil trial over language--because it's about money usually--than there are with respect to the rights of an accused. So all of these things set up, in my view, automatic appeal points if the defence lawyer later says “Well, the order made by the judge just didn't give me my right to have a trial in the language of my choice”.

    I'm not criticizing the effort; I'm just saying that sometimes, in an effort to make things better, we set up problems. This we should know, because we're a budding bilingual country really, but are there examples that would be more specific than having a judge set it up at the beginning by order?

    What we do have are examples where without this specific power being provided to the judge, no order was made, and there were, as you described, these ongoing agreements among counsel during proceedings.

    The end result was that the accused at the end of a trial turns around and says “I haven't had a trial in my language”, and the Court of Appeal of Ontario, with Justice Charron, in her last judgment before she ascended to the Supreme Court, said this is wrong; this is not a bilingual trial and therefore the charges against the accused will have to be re-tried at great expense. And sometimes this becomes an impossibility in law.

    So that's the type of problem we're addressing. Judges did not feel that they had the ability to deal with the issue, that they were given that discretion, so they left it up to chance, more or less. Hence, the objective, as you describe, the perhaps noble objective of bringing greater clarity, allowing these debates to take place more formally. Yes, there may be disagreements at various instances, but it would be preferable that those debates be within the context of the code's provisions rather than in the informal way we've seen them happen, which do result, in practice, in less of a bilingual trial than otherwise.

     We have fifteen seconds on this. Just to put on the record that section 18.1--

    You're stretching it there, Mr. Murphy. Go ahead.

    Fifteen seconds. Section18.1 codifies what's been happening in New Brunswick for some time, in that the judge often, irrespective of who counsel is, makes it clear to the accused that he has the right to a trial in both languages.

     Fifteen seconds, true to my word.

    Thank you, Mr. Murphy.

    Mr. Petit.

    I have a technical question. We are talking extensively about language, and there have indeed been improvements on some points. As you said, some technical issues have been corrected. I have a question that perhaps Ms. Desaulniers can answer.

    When an individual is arrested, he can be released on bail. The individual goes directly before the courts, and in many cases, even the lawyer does not know what the language of the accused is. In fact, legal aid lawyers are often waiting around the courtrooms until the first one available is chosen. The justice does not know whom he's dealing with, but must determine whether the accused will be released or detained.

    Is there a risk that someone may exercise their current rights in order to delay a hearing? If bail is not granted within the required timeline, a person may call upon this under other procedures.

    How do you manage this aspect of language-rights issues?

    Usually, when an individual is arrested, he is indeed taken before a justice of the peace. If the Crown is against releasing him, a bail hearing must be held. With respect to language the hearing is held in, I will defer to my colleague.

    However, there are two possibilities with respect to bail. A justice may decide that one of the conditions of release is paying a certain amount of money. This is then set out in the bail conditions, and the individual is held in detention until the conditions are met. Once all conditions are satisfied, and bail is paid in cash, the individual is released.

    That was not the point of my question.

    The accused is taken to the court house to appear before justice. Yet the justice was not chosen: he is designated. If, as Mr. Murphy mentioned, the judge has trouble understanding French—something we run into often in our practice—what can be done? The judge is the only one who is designated. There are no other designated judges.

    I think the current provisions of the Criminal Code have to be taken into consideration. The accused has the right to a trial and a preliminary hearing.

    Therefore, the bail is not covered.

    Proceedings ancillary to the trial are not covered. It is an issue that both the Commissioner of Official Languages and various French-speaking jurist associations have been raising since 1995. As you have just pointed it out again, we should look into how the situation could be corrected. What could result is a bilingual justice system that does not reflect the rate of bilingualism in any other sphere of the public sector. For example, here in parliament, no one is required to be bilingual as a prerequisite to becoming an MP. In the same fashion, judges are not required to be bilingual.

    Applying the rights of the accused above and beyond a preliminary hearing, for example during ancillary proceedings, appeals, etc., would impose a burden on the justice system. Representatives from various jurisdictions—and we have studies confirming this—have said that their respective systems could not bear the burden. Obviously, in some regions of the country, a higher level of bilingualism is permitted or accepted for practical reasons, or in compliance with applicable provincial regulations. However, in cases where levels of bilingualism are only a few percentage points, introducing a bilingual system is out of reach.

    For now, the problem has not arisen. Some would like to see these rights applied to other procedures, but it is currently not the case.

    Thank you, Mr. Petit.

    Mr. Godin.

    I'd like to make a brief comment. Members of Parliament are perhaps not bilingual, but they are elected by the people by democratic vote. That is how the public chooses elected officials. Here, we are talking about appointments, and in some cases, conditional appointments. We can debate this, but we've already had this discussion.

    Earlier, I asked the minister a question relating to a letter sent by Ms. Louise Aucoin, and dated April 5, 2007. The third paragraph of her letter reads as follows:

    Have you had a chance to look at this letter?

    Yes, and we have not yet had the opportunity to reply to Ms. Aucoin, since we were in the midst of preparing our committee appearance, and we knew that she would be speaking before the committee. We expressed our opinion earlier. To our mind, no change has been proposed. The discussion, as it were, reached a dead end. Because if ever the committee decided to strike this amendment, and the decision is supported by Parliament, the code would still contain clause 531 which sets out changes in jurisdiction. That would not be the end of it. The problem, if there is one, and I do not believe there is, dates back to 1978, and the provision has been in the code since then. This bill has nothing to do with that.

    Earlier, you talked about Manitoba. I think it's what the people of Manitoba want.

    Yes, what the provisions in the code—

    It is the same clause; you simply cleaned it up. What more is this going to give to Manitoba?

    It gives nothing more in this case. In fact, it can only be considered cleaning up.

    You said earlier that it would be—

    I said that since 1978, the provision allows for each one of the provinces to act according to its own specific circumstances. For example, New Brunswick has a provincial system which is much more advanced in terms of the equal status of English and French than other provinces. If the province is able to hold hearings throughout jurisdiction, it can do so. In other areas, there is very little demand, and it would be much more difficult. Therefore, in some cases, you might have one or two criminal trials in the minority language in provinces such as Saskatchewan, which would also like to benefit from the flexibility provided by the code.

    Does the bill propose any changes for New Brunswick? I want to be certain. Under current legislation, can New Brunswick hold decide to move a trial from Bathurst to Fredericton?

    Under the bill, nothing would change. Under the former legislation, New Brunswick could do that. If this bill is adopted, New Brunswick would still be able to do that.

    We cannot say that it did have that possibility. According to the bill, there would be no change.

    There would be no change.

    That is all, Mr. Chair.

     Thank you, Mr. Godin.

    Mr. Bagnell.

    Thank you.

    Thank you for all your answers.

    We've received a submission from the Fédération des associations de juristes d'expression française de common law. Have you received the same submission? Do you know? They're going to be appearing before the committee.

    We've received a number of submissions. We have the one of April 5 that Mr. Godin just referred to, and we have a previous communication of January 23.

     Unfortunately, I don't have a date on mine here.

    Are you open to the suggestions? Do you know if the department or the minister are open to some of the suggestions?

    Well, that's a rather broadly worded question.

    If I look at their letter of January 23, which deals with a number of topics, one of them is just simply not in this bill. This is a desideratum; they would like to have the bill address this. This bill does not address it, so I think it's outside of the scope of what we can do with the current bill.

    In another matter, a second matter, with respect to appeals and accessory proceedings—this is the matter we discussed just a few moments ago—they would suggest that further advances be proposed.

    Okay. I think it's a different letter.

    I'll just quickly mention these concepts, and then hopefully we can discuss them later.

    The first one is that under proposed subsection 530(6), they don't want a trial necessarily automatically to be bilingual. There may be circumstances...so they want the word “may”.

    Under proposed subsection 530.01(1), they want the stuff automatically translated for the accused--he doesn't have to ask for it--and also the original document and the translated to be of equal value. One language doesn't prevail.

    Under proposed paragraph 530.1(c.1), they want to make sure that the prosecutor doesn't have a witness speaking another language...or only if it's warranted. To qualify that a bit more, they don't want them to use too much discretion.

    Under proposed section 530.2, once again the justice can limit the right of the accused to a trial in his language, or a bilingual trial. They just want to make sure once again that this is qualified so that they have to, as much as possible, respect the right of the accused to have the trial in their own language.

    Under section 531—and I'm not sure about this, but I'm going to ask them about it when they get here—they want it not to have to be in the territory in New Brunswick; it could be in another territory if the court isn't available.

    The final one is that just because a judge or a jury speaks the other language, the language of the accused, it doesn't mean they're going to use it. So they want to qualify proposed paragraphs 530.1(d) and (e) so that not only do they speak the language but it's reasonably possible that they use it.

    I can give you a copy of these amendments. You don't have to write everything down.

     Some of these amendments sound very reasonable. Hopefully you'll be able to convince the people that they are reasonable. And we'll be having those people as witnesses.

     Thank you for allowing me an opportunity to give our perspective on these topics. There are many of them, so I beg the indulgence of the committee to grant me a few minutes to go over them.

    On the question of automatic translation of indictments, I would refer the committee back to what Minister Nicholson indicated. This is essentially a technical no-hassle type of bill. It was very much sold to jurisdictions on that basis. I think that's an important consideration in matters of administration of justice; we have to remember that while Parliament legislates, the provinces deal with the consequences, and any pressures or additional constraints we put on them may limit their ability to implement the provisions we're dealing with.

    The way the automatic translation issue is dealt with in the bill corresponds with what the case law in one jurisdiction in Ontario has stated to be the correct interpretation of the code, which is that a translation of the charging or indicting document will be provided to the accused upon his or her request. The bill ensures clarity in that respect by making it apparent on the face of the code provision, so that it can apply in all 10 jurisdictions instead of simply in Ontario--and in New Brunswick, where I understand it has also been the practice to do so.

    To provide equal worth or equality or value to the translated document is, in our opinion, not desirable. The original document corresponds in many jurisdictions to the constitutional right of the person who writes that indictment or charging document to use his own official language. All Canadians are not.... It was never the intent of the Official Languages Act or the official languages program of the Government of Canada to insist that every Canadian, or a large proportion of Canadians having access to public jobs, be bilingual, so we have to be cognizant of their right.

    As well, by introducing translation, you introduce errors. You introduce the potential to debase what the true act of accusation is and the potential for more rights of appeal. In our view, it's important to maintain certainty in the criminal justice process while giving the accused something that helps in promoting his use of either official language in the criminal justice system.

    On the issue of the use of languages, in the case that the judge makes orders with respect of the witnesses or in the context of bilingual trials, we believe--and the case law certainly indicates this to be the case--that the proper interpretation of the judge in the context of a subsection 530(1) order will always be to put the right of the accused, which is unchanged here, to a trial in his or her official language of choice at the forefront of the considerations that the judge will take into account.

    We don't believe this needs to be spelled out in any greater detail than it already has been. This was not always the case, but certainly the recent case law bears that out.

    The change of venue, which is the section 531 issue, I believe I've dealt with sufficiently.

    I'm not sure if this covers the whole gamut. I'd invite committee members to think of it as one step, a balanced step, with various considerations--the jurisdictions' ability to move forward, as well as our ability to barter a certain number of advances in the process with considerations of efficiency in the justice system.

    Thank you, Mr. Bagnell.

    There appear to be no other questions for the Department of Justice, so at this point we will conclude this part of the meeting and go into a committee business meeting.

    I would like to thank the people from the Department of Justice for their appearance here and for answering the questions. Thank you.

    [Proceedings continue in camera]