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 Bill.
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 Bill 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 , 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 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, 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 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. 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.
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.
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?
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.
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?
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.