The answer to that is essentially no.
You are quite correct when you say that the definition in the bill of what constitutes “routine evidence” is potentially very broad, but it is still qualified by the use of the term “routine”. As my colleague Mr. Taylor has pointed out, there are factors set out in the legislation for the judge to consider, which include a consideration of how central the evidence is to the prosecution case or, for that matter, the defence case.
You are also right, Mr. Fraser, when you say that oftentimes things such as continuity of the handling of evidence or routine observations made by police officers are the subject of admissions. However, the reality is that very often those admissions do not come until very late in the process. Often, on the day of trial, I will be told by defence counsel, “I will admit continuity of evidence.” Well, that's great, and I can send three police officers home, but they're already earning double time for having shown up in court.
This permits a mechanism for these issues to be dealt with at an earlier stage.
Here is the reality of the situation. It's always going to be up to the judge to decide whether or not the affidavit evidence will get admitted. No sane Crown is going to attempt to use these provisions for evidence that we feel will be in any way contentious from the perspective of the defence. Also, of course, we have to give notice to the defence of our intention to tender such evidence. If they object to it, they have to give me notice back.
If, in fact, I give that notice to the defence and it turns out that the defence does object—they have some articulable reason why they want the police officer to attend in court for cross-examination—I'm not going to try to litigate that. I'll just withdraw my notice. I think that this would pretty much be the reaction of any Crown, the sole exception being that if we think the defence is objecting to the admission of the evidence in bad faith, just to try to game the system, we might try to take him to the woodshed by bringing the matter before a judge. That would be the rare exception.
I will be presenting in French, for those who might need to use an earpiece.
Mr. Chair, Vice-Chairs, distinguished members of the committee, my name is Paul-Matthieu Grondin and I am the Batônnier du Québec.
As the Chair has said, I am accompanied by Pascal Lévesque, who is the president of our Criminal Law Committee, an advisory committee, and Nicolas Le Grand Alary, who is a lawyer in the Secretariat of the Order and Legal Affairs.
We thank you for the invitation.
The Barreau du Québec is testifying before you today on Bill with great interest.
As a professional order, the Barreau du Québec's mission is to ensure the protection of the public. The Barreau is impelled to demonstrate this mission because of the significant amendments, both to criminal procedure and the administration of criminal justice in Canada.
With that said, we are grateful to you for inviting the Barreau to share with you its position on the subjects that follow.
First, the Barreau reiterates its opposition to minimum terms of imprisonment, except for the most serious cases, such as murder. Minimum sentences remove the flexibility in properly applying the principle of proportional sentencing from those in the front line, meaning prosecutors, defence counsel and trial judges. Consequently, the Barreau would have liked to see measures on mandatory minimum prison sentences in this bill.
Imposing minimum punishments may, in the short term, provide some sense of security for the public. In the long term, however, these measures are counterproductive for the justice system. Prosecutors lose an incentive to bring an accused to plead guilty when the circumstances surrounding the commission of an offence justify a punishment that would be under the mandatory minimum. Conversely, when the prosecution asks for a sentence in cases where it would be justified to impose slightly more than the minimum sentence, the courts tend, in those cases, to keep to the minimum sentence.
The bill would have been a good opportunity to abandon those types of punishments, which do not promote an efficient and flexible administration of the criminal justice system. Unfortunately, we acknowledge that we will have to wait for next time.
The Barreau du Québec believes that it is urgent for the government to amend the Criminal Code to give courts the residual discretionary power to not impose a mandatory minimum punishment.
But we note the introduction of two bills that seek to give this discretion to the courts. These are Bill and Bill . The measures in these bills could be included in Bill to address the issue of mandatory minimum punishments.
Persons before the court have the right to this constitutional protection. In addition, each accused or each party would no longer have to bear the heavy burden of a constitutional challenge right up to the Supreme Court.
Mandatory minimum punishments can be profoundly unfair in some cases. This is because the only possible penalty is imprisonment, while sometimes other solutions may encourage rehabilitation and thus reduce the risk of reoffending. Judges must be trusted to apply the law in a fair and equitable manner, ensuring that sentences are proportionate to the seriousness of the offence and the degree of responsibility of the offender.
Our second subject is the removal of the preliminary inquiry. The bill proposes to restrict preliminary inquiries to offences punishable by life imprisonment. It also strengthens the power of justices to limit the issues explored to specific matters and restrict the number of witnesses who may be heard.
The Barreau du Québec opposes this amendment. By limiting the use of preliminary inquiries, some argue that we can speed up the judicial process and thus reduce delays. We believe that limiting preliminary inquiries in this way would be ineffective or even counterproductive.
It is important to realize that, according to Statistics Canada, only 3% of eligible cases were the subject of a preliminary inquiry. Of the cases that caused delays beyond the thresholds established by the Cody and Jordan decisions, only 7% included a preliminary inquiry. Apart from anecdotal events, there is no evidence to conclude that preliminary inquiries create undue delays in the justice system, or the need to amend the current rules.
It is also important to mention that, in some cases, preliminary inquiries can test the strength of each party's position. This encourages the settlement of cases, thus avoiding trials on the merits and contributing to the reduction of delays. For example, evidence of an offence may be based on proof by testimony. A preliminary inquiry may be of benefit to both the accused and the prosecution, as they may be able to assess the credibility of those witnesses. This may encourage one or other of the parties to want to settle the matter by pleading guilty or by withdrawing the charges.
We are aware that some may abuse this step and thus unduly lengthen procedures. However, the Barreau du Québec wishes to point out that judges already have many powers of case management. The Supreme Court has invited them to use those powers time and time again. They must be used to define the scope of the inquiry and prevent abuse. Otherwise, we risk abandoning a stage of the criminal proceeding that remains relevant to the search for more efficient justice.
In addition, the Barreau du Québec is proposing an additional measure. It is all well and good to point out problems, but sometimes, we must also talk about solutions. This additional measure involves adding to the Criminal Code the possibility, with the consent of the accused, of replacing preliminary inquiries with our-of-court questioning. Pilot projects in this area have been set up in several judicial districts in Quebec and have proven their worth. This means not having to deal with the cumbersome legal system. Codifying these practices will allow them to extend across Canada, help to reduce delays in criminal practice and improve the efficiency of the justice system.
I will now deal with the elimination of peremptory challenges in jury selection.
The bill abolishes the peremptory challenging of jurors. This measure appears to be inspired by a highly publicized trial in Saskatchewan, where the jury selected did not reflect the diversity of the community where the trail was being held.
The Barreau du Québec considers that the measure proposes in the bill misses the mark. Of course, we find it deplorable that—as sometimes occurs—some lawyers use peremptory requests as a tactic to systematically disqualify prospective jurors for discriminatory reasons such as race or ethnicity.
However, we consider that simply abolishing peremptory challenges is not the answer. Peremptory challenges are always useful for litigants who are familiar with jury trials. Here is why. Lawyers can perceive, through the appearance, the words and the non-verbal language of prospective jurors, that they will not have the capacity to listen sufficiently objectively to the evidence to be presented and to make an impartial judgment on that evidence. They also ensure that the accused accepts the legitimacy of the jury and, by extension, the verdict and the sentence that will be pronounced. It is also important to mention that peremptory challenges are often made with the consent of both parties. That is important to keep in mind.
The Barreau de Québec agrees, however, that the composition of jurors must reflect the diversity of Canadian society. We therefore propose that the Criminal Code be amended so that one party or the other may request the judge to steer the composition of the jury when one party appears to be making peremptory challenges in bad faith, or when the jury, for other reasons, is not representative of the community. By holding a hearing to that effect, could appoint jurors to ensure that some members come from diverse backgrounds. Once again, I feel that it is important to mention that, when peremptory challenges are used, the vast majority of lawyers use them in good faith.
I will now talk about the impacts of the amendments to the Superior Court of Appeal.
The Barreau du Québec is afraid that significantly increasing the number of hybrid cases and imposing a one-year limitation period on summary conviction offences may have potential impacts on appeals in Superior Court.
We therefore want to make sure that there will be more resources for superior courts so that they will be able to handle the increased volume of cases without increasing the delays that we actually want to reduce. But I feel that it is important to emphasize that we are in general agreement with increasing the number of hybrid cases. That is a very good thing.
As for replacing some of the terms in the constitutive provisions of offences, we note that, for a number of offences, the adverb “wilfully” or the expression “with intent to” have been replaced by “knowingly”. We question the scope of these changes.
Is this a simple exercise in semantics, as in R. v. Sault Ste. Marie, which uses “wilfully” and “knowingly” as synonyms? Or is rather a desire to change these offences so that they go from specific intent offences to general offences?
The change in wording suggests that the intent is to change the applicable criteria, since, as the Supreme Court has stated, “the legislator does not speak for nothing.” The amendments are therefore likely to cause both difficulties in interpretation and disputes.
I will now address the proposal to permit only prosecutors from filing charges.
In addition to what is provided for in the bill, the Barreau du Québec recommends that charges for Criminal Code offences should be filed only by prosecutors. It is often the case that charges are dropped for lack of evidence or because of exculpatory evidence brought to the attention of the authorities. In addition, charges may be laid despite their technical or unimportant nature, despite the fact that it may not be appropriate to do so in the interests of justice. To reduce this risk, British Columbia, New Brunswick and Quebec have chosen to grant the power to lay charges to prosecutors only.
In Quebec, this measure is all the more effective because prosecutors have discretionary power, when circumstances warrant, to apply an alternative, such as to handle the case non-judicially, or with alternative measures, when a person admits responsibility.
So pre-charge screening by prosecutors reduces delays by unclogging the system of some of the cases that can be handled alternatively without harming the public interest, or that would likely would not have been successful at trial. As the Supreme Court of Canada stated in R. v. Sciascia, this practice assists the extremely overburdened justice system.
With the agreement of the provinces and territories, since we are dealing with the administration of justice, this rule should be enshrined in legislation to standardize the practice across Canada. At very least, it should encourage the use of pre-charge screening, as does subsection 23(1) of the Youth Criminal Justice Act.
Mr. Chair and members of the committee, that is an overview of the principal issues that the Barreau du Québec wanted to discuss with you as part of the consultations on Bill . The brief we have submitted to you contains more detailed explanations of the various issues we have just presented. The brief is also available on the Barreau's website. We hope that our presentation will provide you with food for thought.
In our reflections, we have deliberately highlighted the parts of the bill that we would like to be amended. But I would still like to point out that the bill contains a lot of good things. However, to channel the discussion and to use our time effectively, we have focused our thoughts on the places where we believe that amendments should be made.
We are now able to answer your questions.
Thank you, Mr. Chair.
Good afternoon. Thank you very much for permitting us to testify at this panel. My name is Paul Doroshenko. I'm a criminal defence lawyer in Vancouver. Kyla Lee is my colleague and is probably the busiest impaired driving lawyer in British Columbia, and the head of the Canadian Impaired Driving Lawyers Association.
There are three things we are in a position to speak to today and that we would like to give evidence about. The first is the change in the onus for bail in circumstances of individuals who are charged with domestic assaults. The second is the change to the limitation period to lay a charge with respect to summary offences from six months to one year. The third, which we've already heard is quite contentious, is the matter of police officers providing evidence by way of affidavits. This is a significant concern for us, because when we look at it, as far as we're concerned, it appears that the police can basically put their whole case in by way of affidavit.
If you take a look at the thing that's already been mentioned, routine police evidence, there is a definition of that that's supposed to guide a judge and, I guess, prosecutors and defence lawyers, with respect to making those applications and putting things in by way of affidavit. If you look at what is actually listed in there as routine police evidence, it is the entirety of a police investigation: collection of evidence and observations of the police officers. That's what happens in most summary offence investigations. If you're dealing with, for example, an impaired driving case, it's routine police evidence for a police officer to pull somebody over and make an ASD demand. It's routine police evidence for a police officer to get a fail on an ASD roadside breath tester. It's routine police evidence to make observations of evidence about a person's status, such as whether or not their speech is slurred. This is all routine police evidence.
My particular concern is that putting in evidence in this way is going to lead to wrongful prosecutions, particularly in cases where people are self-represented accused and they don't know about this whole procedure to try to make an application to courts to oppose the Crown's application to rely on affidavit evidence. From a defence lawyer's perspective, obviously this is something that we're going to challenge, but since I read this section I've been trying to think of a single case in my career—and this is 18 or 19 years—in which a police officer has testified in a trial and I did not have questions for that police officer on the basis of their testimony. I'm trying to think of a case in which routine police evidence is going to arise in such a circumstance that it's not going to be contentious in any way or not going to build on, in some manner or another, the case that I want to use for the defence of my client.
Really what it comes down to—here's one of the fundamental problems with it—is that we have to put our client's argument to the court. We have to put our version of events to the witnesses who are presented in court. So if the Crown shows up and they proceed by way of this affidavit only, how do we put our version of events to that person? How does the judge make a finding of fact? How do they assess credibility in circumstances where all they have is an affidavit of a police officer? Well, there are two different ways they can go. As a judge, they can say they're just going to accept everything that police officers put in this affidavit, which, I can tell you, I don't think is going to happen. The other is that they're just going to say, well, okay, somebody else is testifying that something didn't happen that way. The police officer hasn't been there to testify. There's been no cross-examination or testing of that evidence, so ultimately, they're just going to accept the evidence that they've heard from the people who are giving evidence that contradicts what the police officer has in that affidavit.
This is something that we've already seen in British Columbia with respect to the immediate roadside prohibition scheme, and that's something that Ms. Lee deals with all the time.
Do you want to go ahead?
Thank you very much for the opportunity to appear before you today. This is a lengthy bill, so in the interest of time I will dispense with the intros to my organization and myself.
We support the goals of Bill and applaud the government for taking steps to address many issues in the justice system that are crying out for reform. We particularly welcome the attention to the deluge of administration of justice offences that are appearing before our criminal courts; to our bail system, which is overly risk-averse, detaining and releasing too many people on too many restrictive conditions; as well as to racial discrimination in the jury system and the deep unfairness of the mandatory victim surcharge. In our view, reform in many of these areas, as well as in others, is overdue.
My submissions today will focus on the bail and administration of justice offences, just because I think this is an area where you may not hear as much from various witnesses. We do support the goal of these amendments, but we think they don't go far enough. A lot of the amendments' proposed changes codify existing law. Lawyers and judges and justices of the peace should know what the existing law is. It's useful to write that down in statute, but really, to make serious changes to our bail system and how that's operating, we think more fundamental reforms are necessary. I'll go over a number of those in my proposed submissions.
Before getting there, though, I do want to outline three areas of this bill that we have deep concerns about: the treatment of police evidence, the proposed new maximum sentences for summary offences, and the restrictions on the availability of preliminary inquiries. I'll be very brief, but I'm happy to take questions on these.
First, clauses 278 and 294, which streamline the admission of police testimony, are, in our opinion, at best superfluous. There are already provisions in the Criminal Code that allow for agreed statements of facts to be put before the court. At worst, they are a serious affront to the presumption of innocence and the right to a fair trial. They should be removed in their entirety.
Second, with regard to increasing maximum sentences for summary offences from six months to two years less a day, I do not believe the government intended to increase the severity of penalties available in the Criminal Code. We're very concerned that the collateral impacts of this sentencing change will do just that. There are serious immigration consequences that come with increasing maximum sentences. Due to the definition of “serious criminality” in the Immigration and Refugee Protection Act, this would drastically increase the legal jeopardy for people charged with summary conviction offences. It also means that a whole new class of individuals may be inadmissible to the United States based only on the maximum sentence. We do not think these sentencing changes should go forward without complementary adjustments to at least the Immigration and Refugee Protection Act.
Finally, we've looked at the evidence in favour of eliminating preliminary inquiries, and in our view it's mixed. There are some who say it will have an impact. The most recent published academic study said there would be no impact to efficiency in the criminal justice system by eliminating preliminary inquiries. We've listened to our experts in the defence bar. We've listened to the submissions of the Criminal Lawyers' Association. We are concerned about the impacts on wrongful convictions and failed trial processes for eliminating this particular portion of the justice system. It operates differently in different provinces, so the impact will be different depending on where people are practising. We just don't believe that the evidence of the benefit is worth the risk to the trial process.
Having said that, I'll use the rest of my time for the bail and administration of justice offences. I have eight specific amendments, some of which I'll deal with only briefly, that we think will have a larger impact on bringing back fairness, presumption of innocence, and reasonable bail in Canada.
First, we'd urge a greater systemization of the language in this bill. The law is quite clear that restrictive forms of release and conditions may only be imposed when they are necessary to address the statutory grounds of detention. But if we look, for example, at the police provisions on when conditions may be applied by police in this bill, we see that police can apply conditions “to prevent the continuation or repetition of the offence or the commission of another offence”. That is much, much broader than the existing statutory grounds for detention. I would hope it was not the intent to broaden when police can impose conditions when releasing an accused. That is a very, very broad power to impose restrictive conditions.
There are other instances in this bill where it says conditions may be imposed when it is desirable. That type of language needs to be systematically brought into line with charter jurisprudence and the Supreme Court of Canada's holdings on when conditions are legal, in light of the charter right to reasonable bail.
We also think that significant enhancements can be made by addressing the procedure of bail hearings. In Ontario, for example, it is routine for there to be an assumption that a surety is required, and when defence counsel go into a contested bail hearing, they frequently feel the need to call a potential surety before they know what the appropriate form of release is, even when it's a Crown onus, because if they don't call a surety and the assumption is that a surety is required, then their client will be detained.
There was a decision from February, the Tunney decision, that put the Supreme Court's decision in Antic into practice and said that a bifurcated bail procedure is necessary in our courts in order to maintain the latter principle on bail. This means that before defence is required to call a surety, the justice must rule on what form of release is required. In Crown-onus situations, the Crown actually has to come and prove that it does need a surety for this person to be released, and only then is the accused required to bring, or it is suggested that the accused bring, evidence about what surety is appropriate.
This is a big change for Ontario bail courts. The change is slowly making its way across the province, but change is difficult, especially in the bail arena. This committee has an incredible opportunity to significantly strengthen that practice and make real changes, particularly for Ontario, in terms of how bail is adjudicated.
Third, I would urge this committee to address circumstances in which individuals are likely to be held in pretrial detention for longer than they would be convicted if they were sentenced. It is not uncommon for a person in pretrial detention to face a choice. They can sit there. They can wait for their trial. They can wait for a contested bail hearing, or they can plead guilty and they can be released sooner. That's a situation that nobody should have to face. Our pretrial process should not be more punitive than our sentencing structure. Right now there are no provisions in the Criminal Code to address this situation. There are submissions from Professor Marie-Eve Sylvestre, who suggests that we need to add a provision saying that if a person is likely to be sentenced to a certain amount of time, they shouldn't spend more time in pretrial detention than they would receive on a sentence.
We have two suggested amendments—and I do have a written brief, which I'll circulate after—that we think would really address the situation and increase the fairness for those individuals.
Fourth are the secondary grounds of detention. These are the grounds of detention most frequently associated with public safety. In Morales, the Supreme Court looked at the right to reasonable bail and said that secondary grounds of detention have to be interpreted narrowly in order for charter rights to be upheld. It's not any risk to public safety. It's not any risk that a person will commit a criminal offence that will justify keeping somebody in detention or imposing restrictive conditions. It has to be a substantial risk that a person will commit another offence, and a substantial risk that this will impact public safety or the safety of an individual.
The secondary grounds, however, are interpreted quite liberally when in bail court, so there is a temptation—and I think we see this, actually, in the text of this bill, in the police release conditions— to say that any risk that someone will go out and commit another offence is a justification for the imposition of restrictive releases or restrictive conditions. We think that language can be tightened in the Criminal Code to more accurately reflect the charter as well as the Supreme Court's holdings on this matter, and we have some suggested language for that.
I'll go through the rest briefly. We think expanded scope for bail reviews would be extremely helpful. Right now there's a relatively restricted scope for defence to challenge bail decisions. With regard to the reverse onuses in the Criminal Code, many have suggested that those reverse onuses should be repealed. This bill does not do that. It introduces a new one that is quite problematic from our perspective. We'd like to see increased flexibility to where an accused can be remanded after the first appearance. It would just give the provinces more flexibility when dealing with people from remote communities.
We'd like to ensure that a previous conviction is not an elevated factor in the consideration of bail by removing proposed paragraph 515(3)(b), which enumerates specifically that a previous conviction must be considered upon a bail application as one of only two factors that are singled out.
I'll leave my submissions there. We'll circulate my written brief; I realize these were detailed.
I'd also be happy to answer questions on the administration of justice parallel procedure, which I didn't get to but we have some significant concerns about.
We are very pleased to have this opportunity to speak and provide our perspective on Bill to the Standing Committee on Justice and Human Rights. In the interests of time I will not speak extensively about Aboriginal Legal Services, except to say that our Ojibway name is Gaa kinagwii waabamaa debwewin, which translates as “All those who seek the truth”.
The focus of our submissions today will be on four aspects of the bill that we think are steps forward, two that we see as significant steps backwards, and one glaring omission that represents a broken promise to indigenous people.
Let me start with the four provisions of the bill that we endorse. First, we are completely supportive of the elimination of peremptory challenges in jury trials. We have worked extensively on the issue of indigenous jury representation, or more precisely under-representation, for over 10 years. Government neglect and the use of peremptory challenges have had a corrosive impact on efforts to encourage indigenous people to act as jurors. We know that the committee will hear tomorrow from Professor Kent Roach on this matter and, having read his submissions already, we want to say that we support them wholeheartedly.
For that reason, we will leave peremptory challenges and move to the second area where we feel the bill provides a step forward, and that's effectively decriminalizing many administration of justice offences. Study after study has shown that indigenous people are significantly overrepresented among those charged with administration of justice offences. Penalties for these offences often result in jail.
As significantly, these convictions themselves are often bars to release on bail on subsequent arrest. This then leads to people pleading guilty to offences they did not commit just to get out of pretrial custody. You heard about that in the last session. The root problem in this area is the overuse of unnecessary bail conditions by judges and justices of the peace, at the urging, it must be pointed out, of Crown attorneys. Hopefully, the use of these conditions will diminish when and if it becomes clear that breaches of them will no longer result in further criminal convictions or jail.
Speaking of bail, that brings us to the third amendment we are very supportive of, and that's the amendment that enshrines the application of the Gladue principles to bail. Although courts in most parts of the country have arrived at this conclusion on their own, this will ensure that the law is applied evenly everywhere.
Finally, with regard to the victim fine surcharge, returning discretion to judges with regard to the imposition of the surcharge is long overdue. It is an important and much-needed change.
Now I will go to the two provisions that we feel should be rethought. The first is the reverse onus provision on bail applications for those charged with a domestic violence offence who have been convicted of such an offence in the past. ALS takes the issue of domestic violence very seriously, and we are all too aware of the impact of this violence on indigenous women and girls.
At the same time, we are also very aware that many well-meaning attempts to address the scourge of domestic violence not only fail but have unintended consequences that can be damaging to the very people they are supposed to help. In this context, we would point out the phenomenon of dual charging, which occurs when a man charged with domestic assault insists that his partner started it and should be charged. That has led to more and more women becoming enmeshed in the criminal justice system. One of the impacts of dual charging is that women end up with convictions for assault that they should never have had. If these provisions go through and their partner once again alleges abuse, then they may have trouble meeting the reverse onus. This means that they'll be detained, they will likely plead guilty, and the cycle will continue.
We need to be aware that over 40% of women in custody today in Canada are indigenous. The provision of this bill will make a shameful situation worse. If someone has a prior conviction for domestic assault and they are charged again with a similar offence, and then if there are concerns for public safety, whether for a particular individual or the community, bail should be denied. There is no need to resort to a reverse onus that will not end up accomplishing what its proponents hope, but will have dire consequences for indigenous women.
Our second concern relates to the increase in the number of what are now called super summary offences. We know from over 25 years of working in the criminal courts with indigenous people what will happen if the maximum penalty for summary conviction offences are raised. What will happen is that Crowns will insist on higher penalties and judges will impose those higher penalties, and one of the justifications for the higher penalties will be that it reflects the will of Parliament.
This is a perfect example of what criminologists call “net widening”. If there is a need to have some super summary offences where straight indictable offences now become hybrids—and I stress “if”—then perhaps their use can be justified. However, as it stands now, the promise of increased hybrid offences is being used as a Trojan horse to lead to widespread and unjustified increases to the maximum penalty for summary offences.
Finally, let me address what's missing from the bill. Given how comprehensive this bill purports to be and how many issues, big and small, it addresses, it is baffling to us how it avoids the issue that has to be the elephant in the room: the proliferation of mandatory minimum sentences and unjustified restrictions on the access to conditional sentences. This is the single largest change that's happened in our criminal justice system in the 21st century.
This government knows that mandatory sentences, minimum sentences, don't work. The has spoken on this issue. Almost a year ago exactly, on September 29, 2017, to be precise, this is what the minister said about mandatory minimum sentences:
||There is absolutely no doubt that MMPs have a disproportionate effect on Indigenous people, as well as other vulnerable populations.... The data are clear. The increased use of MMPs over the past decade has contributed to the overrepresentation in our prison system of Indigenous people, racialized communities and female offenders. Judges are well-equipped to assess the offender before them and ensure that the punishment fits the crime.
One of the purposes of this bill is to increase efficiency and unclog the courts, yet there are many, many charter challenges currently under way and more being contemplated to mandatory minimum sentences. Having been involved in a number of those challenges, I can tell you that they take a lot of court time. Every day that the government fails to address the impact of mandatory minimum sentences, people are sent to jail who don't need to go there—every day.
How do mandatory minimums affect indigenous people? You can look to see the number of challenges brought to mandatory minimums by indigenous people, and you can listen to the words of the . This government pledged to enact all the calls to action of the Truth and Reconciliation Commission that fell within its ambit. Call to action 32 reads, “We call upon the federal government to amend the Criminal Code to allow trial judges, upon giving reasons, to depart from mandatory minimum sentences and restrictions on the use of conditional sentences.”
Members of the committee, it is past time to heed this call to action. If this bill is not amended to address the issue of mandatory minimum sentences and lack of access to conditional sentences, then it won't happen before the next election. If it doesn't happen before the next election, it will be years before it happens.
This government does not believe in the utility of mandatory minimum sentences. This government believes that they're not only ineffective, but that they contribute to inequality in the justice system. This government is completely right in those beliefs. There can be no excuse for waiting. There can be no justification for waiting. We all know what the right thing is to do, and we need to do it.
Thank you. Meegwetch.
As indicated, I am the elected head of the Law Society of Ontario. Ms. Clément is an appointed bencher. Behind me is John Callaghan, who is an elected lawyer bencher. We thank you for letting us speak today.
The Law Society of Ontario regulates more than 53,000 lawyers. We regulate 8,500 licensed paralegals. We have a statutory duty to protect the public interest, to maintain and advance the cause of justice and the rule of law, and to facilitate access to justice. We are a public interest regulator of legal services.
Bill is very broad in scope, but our comments are focused on the issues within our authority as a law society and our independence. They are focused as well on the potential adverse impacts on access to justice, which we consider to be significant. We think the issues we raise are inadvertently caused by what is proposed in , and we think they are capable of correction.
As you know, agents are entitled to appear on summary conviction offences under the Criminal Code. That's why, in Ontario, paralegals have been regulated for the last decade. The Ontario Court of Appeal recognized the importance of doing that many years ago, and that was acted on in 2007.
Paralegals, law students, articling students and licensing candidates are agents. They can appear on summary conviction offences. However, section 802.1 limits the rights of agents to appear on offences that carry up to six months' potential penalty. As a result, we have what was described by Mr. Rudin a moment ago: super-summary offences on which agents can't appear, and the ordinary summary offences of up to six months' sentence on which agents can appear.
As you also know—it's been said to you by this and the preceding panel—eliminating the six-month category of summary offences and moving everything up to two years less a day has what we think is the unintended, but certainly very significant, effect of eliminating the ability of law students, articling students, licensing candidates, paralegals, and agents in other provinces to appear for people who are accused of summary conviction offences.
In Ontario, regulated agents play a significant role in the criminal law system. Paralegals are independent legal professionals who are licensed and regulated by the Law Society of Ontario. They provide a defined set of regulated services, including acting in criminal summary conviction matters. Overall, criminal and quasi-criminal law accounts for the largest area of legal services provided by paralegals in Ontario. Many report that they dedicate a significant portion of their practice to representing clients in criminal summary conviction matters.
Articling students and law students are involved in court appearances. Articling students frequently attend court or tribunal hearings to speak to routine administrative matters—for example, unopposed adjournments, uncontested and consent motions, and set dates. Articling students conduct permitted hearings or trials regularly or frequently. These activities include participating in summary conviction matters. Whether or not these services can continue to be provided by the people who are providing the service is very important.
We acknowledge the common cause of the government and everyone here, which is to advance access to justice, reduce judicial delay and enhance fairness. We recognize that the bill includes provisions with that in mind and with that effect. However, this provision, the increase from six months for these summary conviction offences to two years less a day, raises three significant issues.
Ms. Clément will address the first two.
Thank you and good evening. I really appreciate the invitation to be able to speak to you this evening.
I would like to thank the members of the committee for this invitation.
I will be speaking in English.
I'm really here tonight to speak very specifically about the impact of the bawdy house law on LGBTQ people over many years. While I applaud the proposed repeal of anal intercourse from the Criminal Code, it was certainly not the only law that was used to unjustly target LGBTQ people in my community.
I'd like to begin by telling you a story. I'd like to take you back to the night of February 5, 1981, which remains seared in my memory, despite my very best efforts to put what occurred behind me.
That night, I found myself at the Roman baths on Bay Street. For those who don't know, that's a club for men seeking to meet other men for consensual sex. It's a place that I had visited on several occasions as a 34-year-old out gay man seeking to enjoy my new-found sexual freedoms in a supposedly safe space. However, what happened that night really was my first-ever encounter with the state and a police force that took it upon itself to enforce the archaic bawdy house law that still exists on the books and in the law to this day. It's a law I would very much like to see repealed in Bill C-75.
That night, we were rounded up brutally. We were called “dirty faggots” and arrested as “found-ins in a common bawdy house”. The police may have suspected that money was being exchanged for sex, but this was never proven in court. The premises were ransacked at all of the city's bathhouses that night, and several closed their doors permanently as a result.
In his apology last fall to the LGBTQ community, the Prime Minister specifically mentioned the bathhouse raids and the bawdy house law in his apology, but those of us arrested using these provisions were left out of the most recent bill, , which was the expungement legislation. I again provided witness testimony to the senators, who seemed reluctant, in retrospect, to tackle the issue, perhaps—this is something we can discuss—out of concern that the bill would not get passed before the summer break. For us and for me, Bill C-66 became a lost opportunity in terms of providing an opportunity for the repeal of the bawdy house law.
I'd like to also remind everyone that more than 1,300 men were charged with this offence for being in a gay bathhouse between the years of 1968 and 2004. I feel as though I carry their voices into this room with me.
We were dragged through the courts and publicly humiliated. I ended up being put on the stand, where I admitted that I had been at the Roman steam baths that night—yes, I got on the stand and I told the truth—and I became one of some 36 men, out of over 300 who were arrested, who were actually convicted, and I was made to pay a fine. In my case it was an insignificant amount. It was insignificant, really, compared to the sense of shame that I and many other men were made to feel as our names were read out in open court and dragged through the press at the time.
In my case, I was fortunate. My own self-esteem has remained intact. I have benefited from a number of advantages—a loving family, loving partners, a good education—but I can never forget what happened that night. I was wrongfully arrested and convicted, having committed no crime.
Others were not so fortunate. Many lives were ruined that night by exposure in court and the press. Bathhouses at the time were often frequented by men who went home to families who were unaware of the sexual orientation of their spouse, their father, or their brother, and many were from cultures in which homosexuality was frowned upon.
Those of us who were arrested in the bathhouse raids are now dependent on the repeal of the bawdy house law. To this day, it shocks me how traumatizing and stigmatizing that night was and the bathhouse raids proved to be. At least two men are known to have taken their own lives. To this day, I'm one of the few people among those who were arrested who is willing to talk about the bathhouse raids and that night publicly.
The unrelenting power of stigma continues to cast a shadow over many lives. For that reason, I'm here today to appeal to the legislators to ensure that people like me with records, people who were wrongfully convicted of being found-ins in a common bawdy house, are treated on an equal basis in the proposed legislation. We missed out on Bill , but I would like to be treated no differently from all of my LGBTQ sisters and brothers who were either hounded out of the civil service or dishonourably discharged from the military.
Now we are dependent, as I said, on repeal of the bawdy house law in order to apply for expungement of our wrongful convictions and, in some cases, criminal records. Certainly it was clear from Bill that an offence had first to be repealed before it could be added to the list of offences that qualify for expungement, so the law needs to come off the books.
It came to me as quite a surprise, through a request for information from the Toronto Police Service in December of 2017, that a record of my arrest and a supplementary report could still be found in their files. I suspect that if this is true for me, it's true for others. Therefore, I'm here today really on behalf of all of us to ensure now that we're included in Bill . People who were wrongfully arrested in the bathhouse raids, I believe, have every right to request inclusion under the same law that offers expungement to others and to feel part of the government's apology. The bawdy house laws were among the laws used, in the words of MP , “to victimize LGBTQ2S+ people systematically”, to give you the proper quote.
Bill now gives you the opportunity to correct this oversight. I think it would be a grave miscarriage of justice to ignore this opportunity and to deprive us, all of us, of our right to equal justice under the law. I think it's time to put 19th century notions of indecency behind us. Only those acts that are non-consensual or that cause harm to others should be prosecuted under more appropriate sections of the Criminal Code.
Also, I would like to say that I stand in solidarity with people in the sex-work community because I understand first-hand the harm that was caused by the bawdy house law. I also stand with others in recommending that the bill be amended to repeal laws that have been unjustly used against our communities, including laws related to obscenity, immoral theatrical performance, indecent exhibition, and nudity. I know that next week my colleagues will be speaking further to some of these issues.
It's essential, in my view, that we create some closure around these painful moments in our history. There are those who will say the raids came about as a result of attitudes and opinions—that is to say, prejudice against and fear of homosexuals and homosexuality that were prevalent in society at the time and persist to this day. Laws do not necessarily change prevailing attitudes, but they are absolutely necessary, in my view, for the protection of our human rights. They represent a necessary step in the ongoing struggle to promote tolerance and respect for difference in Canadian society.
While you're addressing delays in the judicial system and looking at the matter very broadly through this legislation, I hope you will take this opportunity to remember those of us who were arrested back in 1981 and over the years from 1964 into the 2000s, and that you will ensure this time around that the bawdy house law is repealed in Bill .
Thanks very much.