Mr. Speaker, it is with great pleasure that I rise today to speak on behalf of the to Bill , an act to amend the Criminal Code, the Youth Criminal Justice Act and other acts and to make consequential amendments thereto.
This legislation represents a key milestone on our government's commitment to modernizing the criminal justice system, reducing delays and ensuring the safety of all Canadians. Delays in the criminal justice system affect public safety, undermine public confidence in the administration of justice, adversely impact the rights of accused persons and fails to provide Canadians good value for money.
When proceedings are stayed due to delays, the criminal justice system itself fails. Perpetrators are not held responsible for their actions, the innocent are not given the opportunity to truly clear their name and victims suffer.
Uses of delay in the criminal justice is not a new one. In the early 1990s, tens of thousands of cases were stayed due to delay following the Supreme Court of Canada's historic decision in the Crown and Askov.
As we know, the Supreme Court's subsequent decisions in Jordan and Cody set out a new legal framework for assessing delays. That framework included a transition period in assessing the cases for which charges had been laid prior to the release of the decision.
Given that this period will come to an end next summer, we have no time to lose. We must do everything we can to improve the efficiency of our criminal justice system.
Fortunately, we have many helpful studies and reports including the in-depth study of the Standing Committee on Legal and Constitutional Affairs. Its July 2017 report is entitled “Delaying Justice is Denying Justice”. After hearing from a sum total of 138 witnesses, the standing committee concluded that the causes of delays were wide and varied. It issued a call to the legal community, including judges and federal-provincial-territorial ministers of justice and attorneys general to “take decisive and immediate steps to address the causes of delays and to modernize our justice system.” It also called in the to show leadership “in taking the necessary reformative action”.
I know the minister feels extremely privileged to have been entrusted with the responsibility to address this urgent issue, which also forms part of the mandate letter given to her by the . The Minister of Justice has taken several significant steps to improve the criminal justice system. In total, she has made now 240 judicial appointments and elevations to superior courts right across the country. In 2017 alone, the minister made 100 appointments, more than any other minister of justice in the last two decades. This year she is on pace to meet or exceed that number.
At the same time, the last two budgets presented by our government have allocated funding for an unprecedented number of new judicial positions, which are necessary to allow courts to respond to growing caseloads, including criminal matters. In all, our government has seen the creation of 75 new judicial positions over the past two years.
In fact, earlier this year, chief justices in Alberta and Quebec noted that for the first time in a long time, they were starting to notice positive trends in terms of delays. That is a very encouraging sign. The significant efforts made by judges, courts, governments and other actors in the justice system are paying off.
I will use the rest of the time that I have today to address our government's legislative response to criminal justice system delays.
I would like to thank the members of the Standing Committee on Justice and Human Rights for their thorough study of the bill.
The committee heard from 95 witnesses and examined a significant number of documents on a highly complex subject. There were 58 briefs submitted by various stakeholders, including representatives of police forces, Crown attorneys, defence attorneys, legal aid programs, victims' rights advocates, representatives of indigenous groups, and academics.
The discussion on the admission of routine police evidence by affidavit was particularly important, and our government was listening.
Although our intentions were commendable, we admit that our approach, as proposed, could have had unintended consequences, especially for unrepresented accused persons.
The committee gave that concern due consideration, and we accepted its amendment in that regard.
The reforms in this bill were also generally well received by all sides. There were some concerns heard regarding the provision, the proposed reverse onus, in the context of intimate partner violence due to operational issues that some had experienced with what is known as dual charging; that is where both perpetrators and victims are charged after a victim has had to use physical force to defend herself.
Supporting survivors of domestic violence and ensuring that more perpetrators are brought to justice was part of our platform in 2015, and the reverse onus provisions, which do just that, were maintained in the bill after the committee study.
We know, including most recently, from the Supreme Court of Canada decision in Antic that the problem is not the law itself but in how it has been applied. It is important to note that provinces and territories have developed policies and training in this area. We have a solid legal framework, yet a disproportionate number of indigenous and vulnerable and marginalized accused are being denied bail. Those who are being released are being required to follow too many onerous conditions, with a strong reliance on sureties in a number of jurisdictions.
The proposed new process contained in Bill talks about judicial referral hearings, which will provide an off ramp for administration of justice offences that do not actually cause harm to a victim. This proposal has been supported enthusiastically, both by residents in my riding of Parkdale—High Park and by Canadians right across the country, who are concerned about the disproportionate overrepresentation of indigenous and racialized persons in our criminal justice system.
What we have advanced is a shining example of exactly what the Supreme Court of Canada and the Senate committee report were imploring when calling for “a cultural shift among justice system participants that moves them away from complacency and towards efficiency, cooperation and fairness.”
My colleagues will also recall that Bill includes two proposals in relation to preliminary inquiries. First, the bill proposes to restrict preliminary inquiries for adults accused to offences punishable by life imprisonment, for example, murder or kidnapping. Second, it will permit the judge presiding over the preliminary inquiry to limit the issues to be explored and the number of witnesses to be heard at the preliminary inquiry.
The approach in Bill with respect to preliminary inquiries reflects the extensive consideration and consultation on various options throughout the years and the best evidence available, and ultimately proposes a balanced approach between various interests at stake. It also proposes an approach that was endorsed and supported by the provincial and territorial ministers of justice during the extensive consultations undertaken by the minister with her provincial and territorial counterparts.
One topic that was a particular focus for the committee was the reclassification of offences. Reclassification will result in amendments to many provisions in the code, both for the purposes of hybridizing existing indictable offences that carry a maximum penalty of imprisonment of 10 years or less, and to create uniform maximum penalty of imprisonment on summary conviction of two years less a day.
The reclassification amendments were supported by the minister's provincial and territorial counterparts, who felt strongly that these amendments would give prosecutors much-needed flexibility based on the gravity of cases before them.
Notably, the reclassification amendments are procedural. They change how conduct that is not deserving of an indictable sentence range can be treated. It is already a well-known feature of our criminal justice system that prosecutors assess the facts of the case and the circumstances of the offender to determine which type of sentence to seek from the court.
Importantly, nothing in the bill proposes to lower the sentences that would be awarded under the law. These reforms would not change the fundamental principles of sentencing. We value the variety of perspectives and knowledge that the many witnesses contributed to the Standing Committee on Justice's study.
Bill 's proposed reclassification of indictable offences, punishable by maximum of 10 years imprisonment or less, does not treat these offences any less seriously for sentencing purposes.
Nonetheless, this is an important point. The justice committee heard compelling testimony from witnesses on the terrorism and advocating genocide offences. Our government recognizes that these are crimes against the state, against society at large for the purpose of advancing a political objective, in the case of terrorism. In the case of advocating genocide, these are crimes not just against society at large but crimes against humanity.
I say that with some experience in the area, as a former prosecutor at the UN war crimes tribunal for Rwanda. I know first-hand that there is no more reprehensible crime known to law then genocide, which is advocating for the destruction, in whole or in part, of a national, ethnic, racial, or religious group.
The standing committee unanimously recommended that these offences be carved out of the reclassification approach in Bill . We thank the committee for its diligent work in this area, and agree wholeheartedly with this amendment.
On that note, we moved consequential government amendments to remedy an unintended error from one of these committee amendments in order to reflect the committee's objective of removing these offences from the list of those that were being reclassified.
We also welcomed the committee's amendments to section 802.1 of the Criminal Code to allow the provinces and territories to set criteria permitting agents, that is non-lawyers, such as law students, articling students and paralegals, to appear on summary conviction offences punishable by more than six months imprisonment and to allow agents to appear on any summary conviction offence for the purpose of an adjournment.
One of the unintended consequences of the proposal to reclassify offences in the Criminal Code is that agents would not have been able to appear for individuals on most summary conviction offences unless authorized by the provinces and territories. The justice committee helpfully amended section 802.1 of the Criminal Code to enable provinces and territories to establish criteria for agent representation on summary conviction offences with a maximum penalty of greater than six months imprisonment in addition to the current authority to create programs for this purpose as well as to allow agents to appear on any summary conviction offences for adjournments.
This amendment would address concerns over access to justice issues. It would maintain jurisdictional flexibility while also recognizing regional diversity in how legal representation is regulated across Canada.
On this point, I would underscore that access to justice informs not only the core aspect of the bill, but in all of the efforts we are undertaking at the justice ministry and the efforts made by the minister. The minister has brought this issue to the attention of her provincial and territorial counterparts so they will take the requisite prompt legislative action to set the necessary criteria for this important matter relating to access to justice.
I would also like to talk about the jury reforms proposed in Bill . These changes will make major improvements to our jury selection process by abolishing peremptory challenges for Crown and defence attorneys, allowing judges to direct that a juror stand by for reasons of maintaining public confidence in the administration of justice, modernizing challenges for cause, empowering judges to decide challenges for cause, and allowing trials to continue with the consent of the parties in the event that the number of jurors is reduced below 10, in order to avoid mistrials.
The under-representation of indigenous peoples and visible minorities on juries is a major concern. This problem has been well-documented for years. We believe that eliminating peremptory challenges will significantly improve the diversity of juries.
Peremptory challenges give both the accused and the Crown the power to exclude potential jurors without having to provide a reason. They have no place in our courtrooms, given the potential for abuse. Once this bill has passed, Canada will join countries like England, Scotland and Northern Ireland, which abolished peremptory challenges in 1988.
We must remember that provincial and territorial laws and processes play an important role in determining candidates for jury duty and the methods used to compile jury lists.
The federal government is just one piece of the puzzle. However, I am pleased to see that federal, provincial and territorial government representatives are working together on a wide range of jury-related issues in order to make further recommendations on how to improve Canada's jury system. I believe that the questions raised during the committee's study of Bill will help with these deliberations.
I was also pleased to see that the committee was generally in favour of the more technical proposals aimed at reducing delays and improving efficiency in our system, in particular with respect to removing the requirement for judicial endorsement for the execution of out-of-province warrants, clarifying the signing authority of clerks of the court, and facilitating remote appearances.
As well, I wish to highlight the committee's unanimous support of the repeal of section 159 of the Criminal code, a proposal that has been well received in the LGBTQ community, as well as the proposed amendment to repeal the vagrancy and bawdy house offences, which have been historically and improperly used to target consensual adult sexual activity. These amendments continue our government's important work to address discrimination against LGBTQ2 Canadians.
Importantly the committee also supported Bill 's proposal to repeal the abortion offences that the Supreme Court of Canada struck down as unconstitutional in the Morgentaler decision in 1988. Our government will always protect a woman's reproductive rights and her right to choose what to do with her own body.
As I have already stated, Bill proposes comprehensive reforms that will help to ensure that an accused person's right to be tried within a reasonable time is respected and that all justice system participants, including victims and witnesses, do not face delays.
At the same time, we are deeply conscious of the need and have heard the call for sentencing reform, including mandatory minimum penalties. The minister remains committed to advancing change.
The courts have made it clear that many mandatory minimum penalties present serious challenges from a constitutional perspective. The minister has been clear that her view is that judges should be provided the necessary discretion to impose sentences appropriate to the offender before them.
That said, we need to ensure we put in place sentencing reform that will stand the test of time. Mandatory minimum penalties are being litigated quite extensively. There are cases in which the Supreme Court has upheld the mandatory minimum penalty and there are cases in which the court has not.
We want to ensure we have taken all steps and done our due diligence as we continue to work on sentencing reform so the changes we make will stand the test of time.
The bold reforms proposed in the legislation have been the subject of extensive discussions, consultations and collaboration with the minister's provincial and territorial colleagues. Our commitment to prioritize key legislative reforms that we felt cumulatively would have the biggest impact in reducing delays in the criminal justice system remains strong.
This discussion and the consultations have included extensive debate within this very chamber itself. The House has debated Bill for a total of 14 hours and 45 minutes thus far. Ninety-five witnesses in the course of 27 hours were heard by the Standing Committee on Justice and Human Rights during extended sitting hours. A total of 28 members of the opposition benches from multiple parties have spoken out on the bill.
Further to that, we have listened to the standing committee's recommendations and to key stakeholders who have committed to address the issues of delays in the criminal justice system. Bill , as amended, is a result of this commitment and reflects the beginning of a culture change that the Supreme Court was calling for in its Jordan and its Cody decisions. I therefore urge all members to support this important legislation.
Madam Speaker, I rise once again to speak to Bill . One of the biggest problems with Bill C-75 is that, although the objective of the legislation is to reduce delay in Canada's courts, it actually does very little to reduce delay. For a bill that is designed to reduce delay, the fact that it does not reduce delay is a pretty big problem.
The Parliamentary Secretary to the Minister of Justice and other Liberal MPs who have spoken on the bill in this place have patted themselves on the back about, as they have put it, the good work of the justice committee, which heard from 95 witnesses, as the Parliamentary Secretary to the Minister of Justice just stated, and that Liberal MPs listened to the key stakeholders and acted on the concerns raised by stakeholders.
In the three years I have been a member of Parliament I have never seen a piece of legislation more widely criticized in virtually all aspects of this massive 300-page bill than Bill . Despite the rhetoric from across the way about listening to key stakeholders, the reality is that on issue after issue, the Liberals did not listen. They ignored the concerns raised by key stakeholders at committee. Instead they rammed the bill through committee and, other than a few minor changes, we are largely stuck with a very flawed bill, a bill that is problematic in so many different ways.
In that regard, let me first highlight the issue of hybridization. Putting aside the issue of watering down serious indictable offences, which is certainly a serious concern, from the standpoint of reducing delay, hybridization is going to download even more cases onto provincial courts. Some 99.6% of criminal cases are already heard before provincial courts, and if any member questions my statement about the fact this would result in the further downloading of cases, do not take my word for it. Take the Canadian Bar Association's word. The Canadian Bar Association, in its brief to the justice committee said that hybridization, “...would likely mean more cases will be heard in provincial court. This could result in further delays in those courts....” No kidding. Despite what the Canadian Bar Association said, the government said, “No problem. We'll just download more cases on to provincial courts”.
Then, there were public safety concerns raised about hybridization. One of the concerns raised was by John Muise, a former member of the Parole Board. He noted that offences being reclassified included breaches of long-term supervision orders. Long-term supervision orders apply to the most dangerous sexual predators in our society. We are talking about individuals who are so dangerous that after they complete their sentence, they are subject to a long-term supervision order for up to 10 years, with many stringent conditions.
John Muise said that it is a serious problem to treat breaches of these orders which are imposed on the most dangerous of people and that they should remain solely indictable, mainly because a breach of a long-term supervision order is a sign that these very dangerous offenders are returning to their cycle of violence and exploitation of vulnerable persons. We are not talking about marginalized people here, as the hon. parliamentary secretary referred to with respect to minor administration of justice offences, breaches of orders, which should be treated seriously. In this case, we are talking about the most serious offenders. Instead of heeding the advice of John Muise, the government said, “No problem; we'll move ahead”, forgetting about what a member of the Parole Board of Canada had said.
As well, Mr. Chow, deputy chief constable of the Vancouver Police Department, appeared before our committee. He said that there was another problem to reclassifying some very serious indictable offences as it relates to taking a sample and putting it into a national DNA database. Right now, if someone is convicted for one of those offences as an indictable offence, the Crown could apply to a judge to take a DNA sample to be put into the national DNA data bank. However, with Bill , if the offence was prosecuted by way of summary conviction and the individual was convicted, it would be a summary conviction offence rather than an indictable offence, and no such application could be made.
In talking about the impact that might have upon police investigations, Deputy Chief Constable Chow noted in his testimony that of the 85 offences that are being reclassified, as a result of DNA samples being taken over the last number of years, 19 homicides and 24 sexual assaults were solved. However, instead of listening to Mr. Chow, instead of listening to Mr. Muise, the government said, “We don't care. We're moving ahead.”
Then there is the issue of preliminary inquiries. The government is limiting preliminary inquiries to be held if the maximum sentence is life imprisonment, and for all other offences with a lesser maximum penalty, a preliminary inquiry would no longer be available. The government claims that this will help speed up the court process. Witness after witness begged to differ with the government. The brief submitted to the committee by the Canadian Bar Association stated on limiting preliminary inquiries:
This would not reduce court delays and would negatively impact the criminal justice system as a whole.... Any connection between court delays and the preliminary hearing is speculative at best.
If members do not want to take the word of the Canadian Bar Association, perhaps they might be interested in taking the word of the Barreau du Québec, which stated:
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.
Then there was Philip Star, a criminal defence lawyer from Nova Scotia, who said before the committee in respect to preliminary inquiries:
They're incredibly helpful, not only to the accused, but to the Crown and ultimately to our system, by cutting down on delays....
So much for the government's assertion that limiting preliminary inquiries is somehow going to reduce delays.
It gets better, because Laurelly Dale, another lawyer, a defence counsel, who appeared before the committee said:
Two major studies have concluded that preliminary inquiries do not contribute substantially to the problem of court delay. Preliminary hearings facilitate the resolution of potentially lengthy and expensive trials in superior court. They are often used instead of rather than in addition to trials. They expedite the administration of justice. It is far easier and quicker to get a two- to four-day prelim, as opposed to a one- to two-week trial in superior court.
Then there is Michael Spratt, who said:
There is a delay problem in our courts, but preliminary inquiries are not the cause of that delay.
Witness after witness, as I said, told the government that this is not going to work. It is not going to reduce delay. Did the government listen? Did the Liberal members on the justice committee listen? Apparently not.
Further testimony on prelims was from Sarah Leamon who said:
...87% of them actually resolve after the preliminary inquiry process. It saves the complainant,—
—in the context of a sexual assault complainant—
—in the vast majority of circumstances, from having to testify again and from being re-traumatized.
While the Liberal members opposite say they listened, the evidence before the committee and the response of the government to the evidence before the committee demonstrates exactly the opposite.
Even if one accepts the reasoning of the government, despite all of the evidence before the committee that limiting preliminary inquiries will in fact reduce delay, it is important to note that preliminary inquiries only take up about 3% of court time across Canada. To the degree that this is going to have a beneficial impact, the fact remains it is a very small piece of the much larger problem of backlog and delay in Canada's courts.
Let us look at the issue of judicial referral hearings, and the evidence that was before the committee on judicial referral hearings. Serious concerns were raised, including by John Muise, a former member of the Parole Board of Canada, as well as from Mr. Chow from the Vancouver Police Department, about the fact that individuals who commit an administration of justice offence, who are referred to a judicial referral hearing, would not have that breach of an order or other administration of justice offence entered into CPIC.
Right now, if someone does commit an AOJ offence, it is entered into CPIC, but thanks to the government's judicial referral hearing process, that would not happen. As I mentioned when I posed a question to the hon. , the consequences of not presenting the full CPIC record before a judge or justice of the peace can have devastating consequences. My community learned this when Constable David Wynn was shot and killed by someone who had an extensive criminal record, including an extensive record of administration of justice offences.
Now the government is saying that the court would not even have the benefit, if that CPIC record were to be presented, of the totality of that offender's criminal record because, after all, those offences would not be entered into CPIC. When I asked the what the government intended to do to fix this serious public safety issue, which was brought up more than once before the justice committee, he regretfully did not have an answer.
I should note again that in terms of judicial referral hearings, while they will have an impact on undermining public safety because those breaches will not be entered into CPIC, the impact of administration of justice offences on the backlog in our system is actually quite limited. That is because AOJ offences are typically dealt with as tagalong offences. What I mean by that is that they are usually dealt with at the same time that the main or underlying charge is dealt with. Therefore, in terms of the amount of court time and court resources that are being used for the purpose of dealing with administration of justice offences, in fact, it is quite minimal.
Again, members should not take my word for it. They should take the word of Rick Woodburn, the president of the Canadian Association of Crown Counsel. Here is what Mr. Woodburn said to the justice committee:
I can tell you from the ground, they don't clog up the system. They don't take that much time. A breach of a court order takes very little time to prove, even if it goes to trial—and that's rare. Keep in the back of your mind that these charges aren't clogging up the system.
Did the Liberals keep that in the back of their minds? Apparently not because they just went ahead with the judicial referral hearing process without a plan, without any thought of the serious public safety issues that were raised before the justice committee.
Then there is the issue of peremptory challenges. Peremptory challenges have nothing to do with delay, but they were added to this bill. The basis upon which the government has decided to eliminate peremptory challenges is that somehow it will increase the representativeness of juries. Witness after witness said quite the opposite, but instead of listening to those witnesses, the government just moved ahead.
Taken together, the record is very clear. Ninety-five witnesses gave evidence at committee and on issue after issue, the Liberals ignored the evidence. The Liberals ignored the witnesses and as a result, we have a very flawed bill that is not going to get to the heart of the problem, which is to reduce the delay and backlog in Canada's courts.
Madam Speaker, I would have thought the Conservatives would be a bit more excited about the fairly comprehensive changes in Bill that would serve our country well.
Prior to the last election, our government made some commitments, and we are seeing some of those commitments fulfilled within this legislation. That is a positive thing.
I want to pick up on the bigger picture of justice. If we were to canvass Canadians and many different stakeholders about their expectations of the judicial system, I would suggest that they would have three big expectations.
The first would be keeping our communities safe, which is also very important to this government, and I would like to think important to all members. This legislation makes significant strides towards keeping our communities safe.
A second would be protecting victims. When it comes to our justice system, one would like to think there is a vested interest in protecting victims. When I say “protecting victims”, I mean that we should be going out of our way to prevent having any victims in the first place. I will comment briefly on that shortly.
The third priority, or expectation, is accountability for offenders.
These three priorities would be accepted by all Canadians. Bill moves the ball further ahead on these three principles.
There is a difference between the Conservatives' approach to justice issues and this government's approach. Put differently way, there is a difference between the Stephen Harper approach to justice issues and the approach this Liberal government has taken on justice-related issues, whether in this or previous legislation.
We need to recognize that a vast majority of incarcerated individuals will leave our jails. They will go back into our communities. As such, we have a responsibility to ensure that our system allows for better integration. If we are successful at that, we will prevent having further victims in the future. We on this side of the House recognize that.
Listening to speeches given by members on the other side of the House, whether about this or other legislation, one gets the impression that once someone enters our jail system, that person is never going to return to our communities. There is a very good chance that many of those individuals will not return.
However, we must have a system that will work for Canadians by keeping our communities safe, by ensuring that we protect our victims, and ensuring that there is offender accountability.
It is just wrong for the Conservatives to give the impression that this government is looking at ways of minimizing the consequences for serious crimes.
Under this legislation, opposition members say that we would hybridize too many crimes. As a result, they are trying to give the false impression that there would be less serious impacts for those offenders when it came to the weight of the law and incarceration, fines or whatever it might be.
It is important to recognize that we have summary convictions and indictable offences. However, within this proposed legislation, there would be a third component, that being hybridized. We are saying that here is a list of crimes for which the Crown would have some discretion to help determine whether an offence would be an indictable offence.
During second reading, I had the opportunity to listen in on some of the debate. I recall one intervention that bears repeating, because I think most people who are following the debate could relate to the differences. This is what we mean by discretion. At second reading, I recall a Conservative member, and Hansard will reflect this, saying that “kidnapping is kidnapping” and is a serious crime, end of story. It is indictable, so lock up the person and put him or her away for many years.
There is no doubt that kidnapping is a very serious crime. Canadians recognize it as a serious crime. We as a government recognize it as a serious crime. The Conservatives ask why we would hybridize that particular crime. Let me give members a tangible example. I think the constituents I serve would understand why it is important that this be one of those hybridized crimes.
When we think of kidnapping, the first thing that comes to mind is an individual at a school playground identifying a potential victim, putting the victim into a van and disappearing and taking all sorts of horrific actions or maybe kidnapping an individual for the sex trade. There are all sorts of horror stories about kidnapping. I, for one, want those individuals locked up. However, there is a “but”.
For example, divorces occur every day, and some of those divorces are very emotional and involve young children. At times, with a divorce, there are all sorts of issues a child will often have to deal with. There might be a situation where a child has a bad week or a bad day and decides not to go home to the parent who has 100% custody but goes to the non-custodial parent. The other parent then says that the child has disappeared and has been kidnapped. One parent did not have the right to have custody of that child at that time, but the child went to that parent's home, perhaps in tears, or whatever the circumstances were. The point is, the child should not have been at that parent's house, and as a direct result, there is now a kidnapping charge.
I would like to think there is a big difference between that situation and the first situation I described. If members believe that what I just said is accurate and takes place in real life, they should acknowledge that there is a need to support the idea that for certain crimes, for certain actions, we need to incorporate hybridized crimes.
I have a great deal of confidence in our Crowns and the ability of our judicial system to make good decisions. What we are saying is that if a kidnapping like the first example came before the judicial system, I would suggest that the Crown would say that it was an indictable offence and the individual would have to go through a process where, ultimately, there could be years of incarceration, versus another case where it could be classified as a summary conviction. We have seen a number of those crimes that are now eligible, and I suspect that arguments could be made for each and every one.
When we looked at the legislation, one of the major concerns raised by the Conservative Party was the issue of hybridization. Hopefully they now have a better understanding. They raised the issue at second reading and then brought it to the committee stage.
I am actually quite pleased that we are at third reading today, in the sense that it has been a long process to get to this point. The has demonstrated very clearly that this has been a project of consultation, working with a wide variety of stakeholders, from the beginning right up to the standing committee. Maybe I should expand on that point for a moment.
Our justice system is a joint responsibility. We do not have sole responsibility for judicial matters in Canada. We have shared responsibilities with the provinces. That means that the minister, with the assistance of the parliamentary secretary, and others, no doubt, canvassed and worked with the different provinces and territories to establish priorities that needed to be changed. Those changes, those priorities, are fairly well reflected in this legislation. The minister even went beyond that, in terms of consultations with indigenous people and other stakeholders, to formulate Bill so that it was ready for first reading, followed by second reading and committee.
That is where I interjected. My interjection was to comment that even when we, in opposition, brought it to committee, a number of changes were introduced by members after listening to the committee presentations. The Standing Committee on Justice and Human Rights amended Bill at committee to, for example, remove the provisions regarding routine police evidence, which had laudable intentions but had some undesirable and unintended consequences, particularly for unrepresented accused. It removed the terrorism and advocating genocide offences from the list of those being reclassified. That is the amendment I thought of when I was talking about hybridized offences.
The Conservatives presented that issue in the form of an amendment, and we accepted it, which was completely foreign when Stephen Harper was prime minister. The Conservative Party never ever accepted an opposition motion. Not only—
Mr. Glen Motz: That is because you did not have any good ones. Those were horrible.
Mr. Kevin Lamoureux: Madam Speaker, we had plenty of amendments, and they went absolutely nowhere with Stephen Harper. Under this government, there have been many amendments, even from the official opposition. This is yet another example of an amendment actually being accepted. Therefore, I believe that the Conservatives accept the principle of what is being suggested when we talk about hybridized crimes and the importance of that. It is a major aspect of the legislation.
The other aspect is preliminary trials. It is interesting to hear the Conservatives and NDP saying the same thing about preliminary trials. What caught me was what the critic for the Conservative Party said today. He said it was not really going to reduce waiting times. I do not believe that. The member opposite said he could quote X or Y, who are somewhat suspicious of it reducing waiting times. I do not believe it. Maybe the member across the way will have to do a little more convincing.
Preliminary hearings consume a great deal of court time. I am not a lawyer, but I used to be the justice critic in the province of Manitoba, and I can recall many of the frustrations of provincial and other Crowns in dealing with preliminary trials. I can remember a discussion I had with a judge on the issue. It was fairly well received by a good number of people who recognized that it would reduce delays.
The NDP and Conservatives said they were highly suspicious that delays would be reduced. The Conservatives were a little more affirmative in saying that they would not be reduced. They said it would only be 3% of cases going before the courts, so what good was it? Three per cent is thousands and thousands of hours. That would make a real difference.
Preliminary trials might have been needed years ago, but this emphasizes why it was so important for this government to do what it made a commitment to do, which was overhaul and improve the system. To give the impression that minimizing the number of preliminary trials will not reduce court delays is just wrong. I believe it is wrong, based on what limited experience, and I underline the word “limited”, I have on this issue. When I look at that number, 3% is a significant number of court cases, not to mention thousands of hours. I believe it would make a difference.
The Conservatives should be supporting this legislation because this is the type of legislation Canadians want. It would keep our communities safer. It would ensure that there was more justice for victims. It would ensure—
Madam Speaker, when I made my speech on Bill at second reading, I mentioned that we were eager to work with the government to improve the bill. I am disappointed to report not enough was done to enable us to support this legislation. The government's stated goal was to reduce court delays in accordance with the Supreme Court's decision in Jordan and to continue with trial fairness imperatives. I am afraid the bill comes up short on both counts.
This was a 302-page bill so I will not be able to address in my short time the questions I wanted to. However, I would like to speak on four themes very briefly. First, the failure to address mandatory minimum penalties; second, the hybridization issues we have heard about; third, restrictions on preliminary inquiries; and fourth, the patchwork approach to agent representation. These are among the many issues we heard testimony on at the justice committee.
We heard testimony that the measures proposed would, in fact, make matters worse in many cases. I will elaborate. Most of the action in criminal justice in Canada takes place in the provincial courts, and hybridizing offences and pushing more cases onto to those courts is hardly a solution that is going to make things better.
However, I commend the government for a number of things. I commend it for deleting the routine police evidence provision that was agreed to be problematic at the committee. I am pleased we, at the committee, persuaded the government to change that odious provision. I am also pleased to have moved, along with my colleague, the hon. member for , a provision that would repeal the bawdy house provisions and vagrancy sections of the Criminal Code that have been used so often to criminalize consensual sexual activities, particularly among the LGBTQ2 community.
However, there were hundreds of amendments brought to the committee and a number of them were not accepted. For example, the New Democratic Party brought 17 amendments to committee designed to help vulnerable people impacted by our justice system. None of them were accepted by the government.
Every day there are real people who are self-represented. They cannot afford lawyers and there is not enough legal aid in this world to represent them. Who are these people? They are primarily indigenous, poor and marginalized. It is our submission that this bill simply does not do enough to address their realities.
Many of the stakeholders we consulted have told us that the key reforms in Bill are not evidenced-based at all. The stated objective of this bill is to respond to the Jordan judgment, with its mandatory time limits, yet there is considerable doubt the changes proposed would speed up the criminal justice system. Arguably, they would have the opposite effect.
The Liberals claim that this is somehow bold criminal justice reform, yet the elephant in the room is that they failed entirely to address former prime minister Harper's regime of mandatory minimum sentences, despite their political promises and public commitments to do so. Defence lawyers and legal academics agree the reversal of this practice would have been a huge step to unclogging the delays in the system, yet the Liberals failed utterly to even address the topic at all. We believe we need to deal with the root causes of the delays, things like addiction and poverty issues, which are really the root of the crime we are dealing with.
Let me start with mandatory minimums. This is one thing that would have increased compliance with Jordan and alleviated court burden from multiple charter challenges, and it is unfathomable why the Liberals ducked this issue. So many people came to our committee and talked about it. I do not have time to list them all but they included, from Barreau du Québec, Dr. Marie-Eve Sylvestre, who is a professor at the University of Ottawa, and Jonathan Rudin of Aboriginal Legal Services. I could go on and on. All of these people have spoken out about the failure to address mandatory minimums.
There are so many quotes I do not have time to address, but Jonathan Rudin, who is the program director for Aboriginal Legal Services reminded us that even the herself acknowledged the issues with mandatory minimum sentencing, saying, “This government knows that mandatory minimum sentences do not work.” She spoke eloquently on this issue on September 29, 2017, almost a year ago.
The justice minister said:
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.
There is nothing, absolutely nothing, in this bill to address that issue.
I am pleased that Senator Kim Pate has introduced Bill , sponsored by my colleague, the member for , which provides for judicial discretion to depart from the mandatory sentence when it would be just to do so. Then the opportunities for plea bargaining when judges have the discretion that they used to have, as all the experts have said, would go a great deal of distance to solve the issue of delays.
I do not have time to do much with the issue of hybridization. I think there has been enough said about that, and in the interests of time I will skip that.
I will say that Emilie Taman, one of the witnesses, a prominent lawyer in Ottawa, said this:
Indeed, of the 136 indictable offences that are to be reclassified as hybrid by virtue of Bill C-75, 95 are offences punishable by five or ten years. Consequently, this Bill now gives the Crown, rather than the accused, control over whether trial by jury is on the table for these 95 offences. This is problematic because the Crown’s exercise of discretion is done without transparency and is only reviewable on the very high standard of abuse of process.
In other words, we are giving the Crown counsel of the land the ability to make up their minds about which way to go in the privacy of their offices. Contrast that with judicial discretion, where in open court judges decide whether the penalty fits the crime. How different. How far we have come and how far away we are from justice. The potential for bias is real.
I believe that time will not allow me to do much more, but I am so enticed by what the hon. said about preliminary inquires that, in the interest of time, I want to address that issue head-on.
The government appears to believe that restricting preliminaries will save court time and protect vulnerable witnesses. The Canadian Bar Association, the Criminal Lawyers' Association, the Canadian Council of Criminal Defence Lawyers, and the Alberta Crown Attorneys' Association are among the witnesses that utterly disagree with the .
We heard considerable testimony about preliminaries actually reducing court delay. We heard extensive, compelling testimony that preliminary inquiries are a necessary tool to preserve trial fairness.
The Criminal Lawyers' Association of Ontario said:
Eliminating preliminary inquiries for all cases other than those for which a maximum period of imprisonment of life is available will not further the interests of justice or assist with the orderly and efficient administration of criminal justice. The Committee should recommend that these changes not be made.
I had a dozen quotes to give on this, but I think my favourite witness was Professor Lisa Silver of the University of Calgary's faculty of law. She said that we have to protect people from having a trial where none is necessary and that the “preliminary inquiry, at its core, exists as the legislative 'shield' between the accused and the Crown.”
She gave an example, a story which members may well remember, that of Susan Nelles, a nurse at the cardiac ward at the Hospital for Sick Children in Toronto, who was accused of murdering children. During the preliminary inquiry, they found a complete lack of evidence. The result was the charges were dropped. The result, in Professor Silver's view, was that preliminary inquiries are a vital step in ensuring due process and fair trials.
The other issue I want to talk about involves restricting agent representation. Upping the penalty for summary offences to two years less a day is going to have an adverse effect for agent representation across our country. I am talking about law students, paralegals and other agents that currently represent a large “gap population”, as they are called, in our country. There are many individuals who simply do not qualify for legal aid and are too poor to afford a lawyer.
The government has decided it is up to the provinces and territories to regulate what type of agent can represent what crime. This is not co-operative federalism; this is creating a patchwork effect to justice across Canada. Access to appropriate counsel should not depend on where people live, but now it will. We have student legal aid services, people such as Lisa Cirillo, Suzanne Johnson and Doug Ferguson, who asked the government to reverse the measure that would limit agent representation, and yet nothing appears to have been done on that point.
Let me be clear. An unrepresented accused will absolutely increase court delay and deprive that person of his or her right to a proper trial. It often forces the Crown and judges into an uncomfortable position where they must occasionally advise, assist and support the self-represented accused when this is contrary to their official role in the process.
We proposed a number of changes to increase jury representativeness. They were rejected. Professor Kent Roach talked about the shameful situation of juries, such as the failure to have any indigenous jurors on the Gerald Stanley case, and suggested, as did the Criminal Lawyers' Association that we have the ability to look at the jury and the judge given the discretion to decide whether it was representative or indeed embarrassing. That was rejected by my colleagues.
I am sorry I do not have time to say much more, but I will say this. There is a real opportunity lost. We do not do comprehensive criminal justice reform very often in our country. The Liberals brought in a 302-page bill. Some of the key issues I have addressed will only exacerbate the problem before us, making less justice and further delays. There are some things in this bill we like, but on balance we have to say, sadly, we cannot support it.