Mr. Speaker, I am honoured and humbled to participate in the debate concerning Bill , an important piece of substantive criminal legislation, with procedural paragraphs as well, that seeks to modernize the criminal procedure and make the justice system more efficient and effective.
Crime in Canada is constantly evolving. It is crucial that our criminal justice system evolves with it. The amendments proposed in Bill are the latest steps in our continuing commitment to tackling crime and ensuring the safety and security of our communities.
The bill contains some 40 amendments, developed in consultation with our provincial and territorial partners, and other stakeholders in the criminal justice system who have helped us identify processes in need of updating and issues that require attention to keep the criminal law modern and up to date with more and more sophisticated criminals.
Given the limited resources available in the criminal justice system, it has become abundantly clear that we need to find better and more efficient and effective ways to respond to crime, and make better use of those sometimes scarce resources.
I would like to take the opportunity to highlight some of the amendments that the government is proposing in Bill .
First is with regard to agents. With respect to the use of agents, or non-lawyers, the bill would allow the provinces to further monitor the quality of representation by agents of defendants charged with summary conviction offences.
Currently, agents who are not lawyers may appear and may examine and even cross-examine witnesses on behalf of defendants charged with summary conviction offences that carry a maximum term of imprisonment of six months or less.
For summary offences carrying a maximum term of imprisonment of more than six months, agents may represent defendants only if they are authorized to do so in accordance with a provincially- or territorially-approved program.
Agents perform a valuable function, particularly, in northern and remote areas of Canada where native court workers acting as agents for defendants frequently provide assistance to defendants.
We must keep in mind, however, that serious consequences can arise even from a criminal conviction, and many criminal cases involve a significant degree of complexity.
In order to further promote adequate representation for defendants, who choose to be represented by non-lawyers, changes to the rules regarding agent representation would allow the provinces and the territories to set criteria and approve programs for the full panoply of summary conviction offences.
Amendments to the Criminal Code would allow jurisdictions to set criteria or approve programs which would serve as pre-conditions to representing defendants charged with summary offences that carry a maximum jail term of six months or less.
However, in jurisdictions where no programs have been approved and no criteria have been set for this category of offences, agents would still be authorized to represent defendants, as is the case currently.
The situation would also remain unchanged with respect to summary offences that carry a maximum jail term of more than six months. It would continue to be open to jurisdictions to approve programs or set criteria that serve as pre-conditions to representing defendants charged with these more serious offences. However, no agent would be authorized to represent defendants in jurisdictions where no programs have been approved or criteria have been set.
Finally, for any summary offence, it would always be open to agents to appear on behalf of defendants to request an adjournment in summary conviction proceedings.
Second, the bill deals with expert witness evidence.
Amendments in the area proposed in the bill are intended to improve the current regime to ensure that all parties have the opportunity to adequately respond to what is frequently becoming complex and highly technical evidence.
When expert evidence is to be presented at trial, the bill would create new remedies designed to encourage parties to comply with the regime's notice requirements, as well as better address situations of non-compliance.
Proposed new provisions also contain a list of factors which the court must consider in deciding whether to grant adjournments. Where the court refuses to grant an adjournment or reduce its duration, the proposed amendments would require the court to provide reasons. The bill, thus, would send a clear message as to the numerous considerations and significant challenges associated with properly responding to expert evidence.
Hybridization of an offence is the legislative process of converting a straight summary offence or a straight indictable offence into a hybrid offence. This process affords the Crown the flexibility to elect whether to prosecute an offence by way of summary conviction procedure or by indictment. Proceeding by summary conviction offers an expedited trial process and a lower penalty range, whereas prosecuting by indictment involves the possibility of holding a preliminary inquiry as well as a jury trial, and offers a higher penalty range.
The proposed amendments would allow the Crown to select the most appropriate procedure in light of all of the circumstances surrounding the case for six non-violent and specified offences, three of which are currently straight indictable offences and three are straight summary conviction offences.
Hybridization offers a means of ensuring that we make the best use of our courts' limited resources and that more elaborate proceedings involving preliminary inquiries and jury trials are reserved for only the most serious offences.
The hybridization of current straight indictable offences also benefits the accused as it allows the Crown, where appropriate, to proceed summarily in a more expeditious trial process and therefore a lower penalty range.
With respect to leaving the jurisdiction while under an order not to, individuals who flee a province in violation of a bail condition requiring them to remain in that jurisdiction creates special concerns for law enforcement and the entire criminal justice system. Their flight delays and in some cases defeats the course of justice.
The current response to this behaviour is the generic offence of failure to comply with conditions of release charges as enumerated under section 145(3) of the Criminal Code. However, this charge does not differentiate between these bail violations and other bail violations such as a simple breach of curfew.
In order to create a transparent criminal record and emphasize the aggravated nature of this type of bail violation, we propose to create a specific offence of failing to remain in the jurisdiction when ordered to do so.
The creation of this offence is but one part of the response required to the broader issue of enforcing so-called non-returnable warrants. It is not intended to solve the very real challenge of returning accused persons to face trial if they are arrested some distance from where an alleged offence occurred.
The challenge of distance is a practical one and is faced within large jurisdictions as well as within a single province. It comes down to the cost of moving people to where they need to be to stand trial for what they are accused of doing. This is an issue that must be addressed by the provinces under their responsibility for the administration of justice.
Our government is working with our provincial and territorial counterparts to develop practical solutions to address the broader issue of returning accused persons to the jurisdictions where a warrant has been issued against them.
In the meantime, the creation of this new offence is a step in the right direction. The proposal for the creation of this offence is the result of extensive discussions among federal, provincial and territorial officials led by British Columbia. The proposal was discussed and endorsed by the federal, provincial and territorial ministers responsible for justice and public safety at their meeting in September 2008.
The broader issue of non-returnable warrants is complex and a comprehensive solution will likely entail the allocation of significant resources and the development of best practices by provinces rather than further legislative amendments.
Federal, provincial and territorial officials are examining best practices to maximize the efficient use of available resources. Federal officials will continue to work with their provincial and territorial counterparts to identify long-term solutions to this very serious problem.
Currently, the telewarrant procedure is available only for certain warrants, authorizations or orders in respect of searches or seizures. Furthermore, the Criminal Code provides that telewarrants are only available where it would be impracticable for the police officer to appear personally before a justice or justice of the peace to make the application.
Given advances in technology and the trend over the past several years to introduce more technology into the justice system to allow, for example, remote appearances and the electronic filing of documents, expanding the number of warrants which can be obtained through the use of telecommunications simply makes good sense. It contributes to greater efficiency in the use of the criminal justice system's limited resources.
I would rather see police on the streets patrolling and working on investigations than travelling long distances to make an application in person for a warrant before a justice or a justice of the peace.
Included in the list of warrants we propose to make available through telewarrants are tracking warrants, number recorders, as well as production orders for documents and financial records.
In order to streamline the telewarrant process and to make it even more efficient, we are also proposing to remove the requirement that the officer demonstrate why appearing in person would be impracticable in situations where the telewarrant request produces a “writing”. The impracticable requirement will remain where the request is made orally by the police officer.
Next is access to telewarrants by public officers. Through this legislation we are proposing that provisions of the Criminal Code that authorize the obtaining of warrants by telecommunications be amended to include public officers in addition to peace officers. The police who are by definition also peace officers are solely responsible for the enforcement of the Criminal Code and the Controlled Drugs and Substances Act. While they may also enforce other federal legislation, the primary responsibility for the enforcement of non-criminal offences is typically given to individuals who are not police officers but who are designated under individual statutes either as peace officers or sometimes as public officers.
While the powers that can be exercised by these officers are limited to the context of the legislation under which they are appointed, the powers themselves are typically derived from the Criminal Code. The most commonly used power in this context is the search warrant under section 487. Pursuant to this section a warrant may be obtained by either a peace officer or a public officer whose duties include the enforcement of any act of Parliament.
Even though both peace officers and public officers enforcing legislation other than the Criminal Code may obtain warrants pursuant to section 487, the ability to obtain such a warrant by means of telecommunications is limited only to peace officers. As a result, public officers frequently find themselves in a disadvantaged situation in which they require search warrants but are not able to appear before a justice in a timely manner to obtain one. Examples include officers from the Canadian Food Inspection Agency in remote agricultural areas and officers appointed to enforce the Canada Labour Code conducting investigations in relation to health and safety issues on offshore oil platforms.
The ability of such officers to obtain warrants under section 487 is the same as their counterparts who are designated as peace officers and their need to obtain them by telecommunications in a timely manner is equally compelling.
The proposed amendment will not in any way expand the powers that may be exercised by public officers but rather will give them access to the same means for obtaining authorizations for the exercise of those existing powers as is available to other officers able to exercise those same powers. It is in the interest of all Canadians to facilitate the efficient and effective enforcement of our laws by the people that we empower to do so.
Next is the Identification of Criminals Act, fingerprinting, photographing and other measurements. Bill , when passed, would provide an amendment to allow the taking of fingerprints and to conduct other identification processes with respect to a person arrested for a serious offence as specified in the Identification of Criminals Act where that person is subsequently kept in lawful detention. Currently, the act provides that these powers may be exercised where the person is in lawful custody and is charged with or convicted of an indictable offence listed in the act.
A number of conditions must be met for the proposed amendment to come into play. First, the arrest, as any other, must be based on reasonable grounds to believe that the person committed or is about to commit an indictable offence. Second, the police officer must believe, on reasonable grounds, that it is necessary and in the public interest that the person be detained in custody until brought to appear before a justice. Only in these limited circumstances will police be permitted to proceed with the identification process without having to wait for the formal laying of the charge. In most situations the proposed amendments will only affect the point in time where the identification processes are performed.
If the person is ultimately not charged with an offence, or charges are withdrawn or as a result of an acquittal, police services will usually destroy fingerprints and photographs at the person's request. It is important to note that the courts have stated that it is not unreasonable for the police to retain prints where no request is made for their destruction or return.
The proposed changes to the Identification of Criminals Act will result in streamlining the identification process and avoid having to detain the person for an extended period of time while waiting for the actual charge to be laid before proceeding with the much need identification processes.
Now to corruption of foreign public officials and bribery. Finally, in support of Canada's international obligations, the bill contains amendments to the Corruption of Foreign Public Officials Act, the Criminal Code and the Canada Evidence Act.
One of the amendments would give nationality jurisdictions to Canada for offences of foreign bribery. Most of the time, these offences are committed in a foreign country. Currently, Canada exercises territorial jurisdiction. This allows Canada to prosecute an offence committed in a foreign country when there is a “real and substantial link” between the offence committed in the foreign country and the country of Canada.
Nationality jurisdiction would allow Canada to prosecute offences of foreign bribery committed outside Canada by Canadians, permanent residents of Canada and Canadian corporations without having to provide evidence of a link between Canada and the offence. This would facilitate prosecutions of foreign bribery cases.
In addition, we propose to add the word “selected” to the definition of the word “official” in section 118 of the Criminal Code, which applies to corruption provisions. Currently, this regime applies only to persons appointed or elected.
The Federal Accountability Act provides that the appointed process for some members of the public service include consultations with Parliament. Under this process, the name of a person “selected” for an office is made public before the person is actually appointed but the person is not an official under the current definition and, therefore, not subject to the bribery provisions until the legal appointment.
In addition, the Organization of American States, or the OAS, and the Inter-American Convention Against Corruption, which Canada ratified in 2001, requires the criminalization of bribery to officials “who have been selected, appointed or elected”. The proposed amendments would correct this gap in the current law.
The bill contains many other amendments, such as those that would update the outdated prizefighting and parimutuel betting as recommended through consultations with our federal, provincial and territorial stakeholders, and other levels of government.
I trust that all members will give this bill the support that it requires. The amendments would contribute to the significant improvements in the efficiency and effectiveness of the criminal justice system that all Canadians are asking for. Criminals are evolving and becoming more complicated and sophisticated and the law must evolve to keep up.