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View Murray Rankin Profile
NDP (BC)
View Murray Rankin Profile
2019-06-17 23:14 [p.29254]
Mr. Speaker, I was just making the point that the Criminal Lawyers' Association has made, about why mandatory minimum sentences are important. It is because if a criminal lawyer has the possibility, a zero-sum game, that his or her client will get the minimum sentence that is there with no discretion of the judges to forge a penalty that is appropriate in the circumstances, the lawyer is not going to cut any deals. There will be no plea bargaining. There will be no efficiency. Therefore, the greatest single efficiency gain would have been what the Prime Minister promised us would happen, which is that mandatory minimum sentences, the way the Conservatives did it, would be eliminated. That was the promise that Canadians received over and over again, only to be completely thrown out in this bill.
It is a gigantic reform initiative. To be fair, it is all pertaining to criminal law but is a gigantic effort with this gigantic problem completely ignored. It is not a problem that I alone identify as an obstacle to efficiency gains and to addressing the crisis that Jordan represents, of people walking free from very serious crimes because we cannot get a trial in a reasonable amount of time. For reasons that escape me, the Liberals completely ignored that and did a number of other things, some of which are commendable but do not do what the objective of the bill was to be, which was to address the issue of inefficiency. That is the problem that the Criminal Lawyers' Association pointed out.
The courts have been reduced to simply being, as some people call them, slot machines of justice. They have no discretion at all. If the facts are made out, the penalty is there. It is push a button. Some judges have complained to me privately that they feel like they are simply automatons. That is not what judges historically have done. The Conservatives rendered them in this position that is invidious and, frankly, embarrassing to many judges. What they thought they had the power to do, which was to render an appropriate sentence to fit the crime, was thrown out the window when mandatory minimums were imposed on so many of the sentences in the Criminal Code.
We also have a crisis in Canada with the overrepresentation of indigenous women in particular. To his credit, the Minister of Justice referred to this problem. We all are aware of it. It is another national disgrace. Jonathan Rudin testified to the justice committee. He is a very memorable witness. He is a lawyer with the Aboriginal Legal Services in Toronto. He highlighted the government's inaction with regard to abolishing mandatory minimum sentences and its particular effect on indigenous women. Here is what he said:
[w]e have to look at the fact that there are still mandatory minimum sentences that take away from judges the ability to sentence indigenous women the way [judges] would like [them] to be sentenced. There are still provisions that restrict judges from using conditional sentences, which can keep women out of prison.
The first thing he urged the committee to recommend was to bring into legislation that judges have sentencing discretion, which the Liberals promised to do and did not.
I suspect the problem is much worse now, but in 2015 the proportion of indigenous adults in custody relative to their percentage of the population was eight times higher for indigenous men and a staggering 12 times higher for indigenous women. Any measure that could address this problem head-on has to be looked at seriously. The government's failure to address what the mandate letter from the Prime Minister told us it would do is a serious missed opportunity.
I would like to turn to preliminary inquiries, which the minister also referred to and was the subject of some of the reform proposals that the Senate brought forward. The Senate legal and constitutional affairs committee passed an amendment to Bill C-75 that would bring back the option for preliminary inquiries for hundreds of criminal offences. Since Bill C-75 was first introduced in the House, the NDP has been advocating that preliminary hearings be retained in criminal proceedings. The Senate is attempting to reverse the government's move to eliminate preliminary inquiries for all offences, except for offences carrying a sentence of life imprisonment.
Senator Pierre Dalphond, a former judge, passed an amendment to bring back the option of preliminary inquiries for most indictable offences, as long as the judge ensures that the impact on complainants is mitigated.
The Liberals argue that this will cost court time, but we heard at the justice committee over and over again testimony that, if we got rid of preliminary inquiries, time saving would actually be marginal and the potential for miscarriage of justice would be great.
While the government has accepted many of the Senate amendments, it is using its motion to continue to severely limit the use of preliminary hearings. We have opposed this measure since Bill C-75 was brought to the House, and our stance, I am confident, remains the correct one.
The Liberals at the House justice committee voted to allow preliminary inquiries only when the maximum sentence is life imprisonment. The other place amended this provision to allow far more judicial discretion, increasing the number of offences that could have a preliminary inquiry from 70 to 463. The minister pointed out that they tried to find some middle ground on this issue.
Overwhelmingly, we heard from witnesses at the justice committee that restricting the use of preliminary inquiries will not address court delays sufficiently and will sacrifice or could sacrifice the rights of the accused. For example, Ottawa criminal defence lawyer Michael Spratt said at the committee that preliminary inquiries occupy a very small percentage of court time but “deliver huge savings to the system. Preliminary inquiries deliver these efficiencies in a number of different ways.” They focus issues for trial, reducing trial length; they identify evidentiary or legal problems in a case at an early stage so the parties can ensure that these problems don't arise during the trial; and they can facilitate the resolution of charges.
He was not alone. Time does not allow me to list all the people who agreed with Mr. Spratt, but they include the Canadian Bar Association; the Criminal Lawyers' Association; the Alberta Crown Attorneys' Association, the prosecution side; various defence lawyers, such as Sarah Leamon, a criminal lawyer; Professor Lisa Silver of the University of Calgary, and on and on, yet the government did not want to go there. I cannot, for the life of me, understand why.
There is also a huge possibility that with taking preliminary inquiries away, there could be a risk that people will be wrongfully convicted. That is what Bill Trudell, the chair of the Canadian Council of Criminal Defence Lawyers, said. The government says we do not need them because we now have what are called Stinchcombe disclosure provisions, Stinchcombe being a famous case requiring the Crown to provide all the evidence available to the defence witnesses. The government says that, as a result, we do not need preliminary inquiries. That certainly is not what these people have said, and on a risk-benefit analysis they think it is just not right. The possibility of a wrongful conviction seems to be something we should all be worried about.
I know that time is running out quickly, but I said I would comment on some of the positive things in the bill, and I would like to do so.
First, there is the elimination of what are called “zombie” provisions of the Criminal Code, which criminalize things that are no longer illegal. These provisions have been found to be unconstitutional and have no place in the Criminal Code.
The bill would restore the discretion of judges to impose fewer victim fine surcharges or not impose them at all. I commend the government for that step as well.
I said in my question for the Minister of Justice earlier that I commend the government for broadening the definition of intimate partner violence. That is a good step. Creating an alternative process for dealing with breaches of bail is another good step. Codifying the so-called ladder principle, which requires that the least onerous form of release be imposed, is a good thing as well.
I agree with the government, and I confess not everybody does, that abolishing peremptory challenges is a positive step. Also, the routine police evidence provision has been amended for the good.
For the LGBTQ2+ community, the vagrancy and bawdy house provisions that were often used in the past to criminalize gay men have been rightly repealed. I am proud of the role that I played at the justice committee in moving those amendments, and I commend the government for finally repealing these discriminatory provisions.
I wish to be on record as saying that there is much in this bill that is commendable. It is the fact of the missed opportunity that is so disturbing.
I still have concerns about the many hybrid offences created in Bill C-75, because contrary to what the hon. Conservative member for Sarnia—Lambton said earlier, all this does is to push them down to the already overburdened criminal courts at the provincial level. The more hybrid offences, which proceed by way of summary rather than indictment, go to the provincial courts, where 95% of all criminal matters already take place. I have talked to people in my province of British Columbia who are very concerned about the impact of this on the administration of justice in that province. Jordan is perhaps not as much of a problem in the superior courts, but is a bigger problem in the provincial courts. Surely, that was not the intent.
I know that I have little time left, but I want to complete the point I made earlier about Madam Justice Marion Buller, the chief commissioner for the National Inquiry into Missing and Murdered Indigenous Women and Girls. She had the opportunity to go to the Senate committee with her report. A number of suggestions were made for reform in the other place and are now in the amendments before this House. I am very happy that that has happened. However, there are still serious problems with some of the legacies of residential schools and the sixties scoop that still need to be addressed.
I believe my time is almost at an end, so let me just say this. I wish we could support this bill. There is much in it that is worthwhile, but the failure to do what the Prime Minister told us they would do, deal with the mandatory minimums, and the inability to address the preliminary inquiries in a more manageable way, are the reasons we must respectfully oppose this bill.
View Murray Rankin Profile
NDP (BC)
View Murray Rankin Profile
2018-11-28 17:28 [p.24117]
Madam Speaker, when I made my speech on Bill C-75 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 Edmonton Centre, 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 C-75 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 justice minister 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 S-251, sponsored by my colleague, the member for Saskatoon West, 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. parliamentary secretary 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 parliamentary secretary.
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.
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