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View Murray Rankin Profile
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.
View Murray Rankin Profile
View Murray Rankin Profile
2018-05-24 16:16 [p.19611]
Madam Speaker, I am pleased to rise today and contribute to what has been a passionate debate. Who knew that criminal justice could be that? Like the colleagues who have spoken before me, we, on the NDP side, have done an enormous amount of consultation with folks from the criminal defence bar, university prosecutors, deputy attorneys general, and the like. Regrettably, as a consequence of that, we have had to conclude that we must oppose this bill.
However, I want to make it clear to my colleagues that our goal is to work with the government, take it at its word, and offer our hand to see whether we can make this a better bill in the justice committee. After all, it is over 300 pages. It is an omnibus criminal justice amendment. We want to work constructively to make it better for Canadians and get it to committee as quickly as possible for that purpose.
Obviously, in any criminal justice reform, there are two goals. The goal of efficiency is clearly the government's stated objective: making our courts more efficient, doing away with the backlog, and dealing with the consequences of the Jordan case, in which the Supreme Court confirmed that we need to have speedy justice in this country. Efficiency is the government's stated objective, and I will come back to that. At the same time, we can never, of course, lose sight of the rights of the accused in our justice system.
With the research and consultation we have done, I want to say at the outset that we recognize there are some good things in this bill, which I will refer to, but there are also some deeply problematic things, which, in some cases, everyone we spoke to thought to be problematic. It is in that spirit that we engage in this debate.
For example, Ms. Sayeh Hassan, a Toronto-based criminal defence lawyer, summarized what many have told us when she wrote:
While there are parts of Bill C-75 that have the potential for improving the criminal justice system, many other parts will not only be unhelpful when it comes to reducing delay but will also wipe out numerous rights currently afforded to an accused person.
The big, ugly elephant in the room is the fact that the government chose to completely ignore what so many people have talked about, which is the need to get rid of mandatory minimum sentencing. That was a hope that people had the right to expect the minister to address. After all, justice writer Sean Fine of The Globe and Mail notes:
As far back as October, 2016, the Justice Minister told the Criminal Lawyers' Association in a speech that she would change the minimum sentencing laws “in the near future.” Days later, she told The Globe that new legislation would be coming soon, “certainly in the early part of next year.”
It is now 2018, and here is a 300-page bill that does not even talk about that reform initiative, which would have dealt with the issue of delay in a much more effective way. I also note that it was in her mandate letter and was ignored in this 300-page bill. Although I have enormous respect for the minister, it needs to be pointed out that the absence of reform of mandatory minimum sentencing is a significant missed opportunity.
We all know we have a clogged-up justice system and so forth. As has been pointed out, we all know the serious injustices that have occurred. Just last month in Calgary, there was a high-profile case involving Nick Chan, an alleged gang member and leader, who was acquitted of charges of murder, conspiracy to commit murder, and leading a criminal organization. Why? Because of the inability to have a court trial resolved in a short period of time, according to the 2016 Jordan decision. All Canadians find that unacceptable.
The question that must be asked is whether this bill helps address that problem head-on. The argument from many is that it remains a serious problem. For example, in its position paper, the Criminal Lawyers' Association states:
Mandatory minimum sentences frustrate the process of resolving cases by limiting the crown’s discretion to offer a penalty that will limit the crown's ability to take a position that will foster resolution before trial.
Here is what happens. Defence lawyers have this mandatory minimum sentence, so they are not going to take a chance on the court's discretion, because the Harper Conservatives essentially took away the discretion that our trial judges had. The result is that we have people going to trial who, in the past, would not have chosen a trial; they would have pleaded to a lower charge. It is inexcusable that this issue did not even get addressed in this bill.
Another thing, which my colleague from Nanaimo—Ladysmith has spoken about numerous times, is that we have a crisis in Canada with the overrepresentation of indigenous women, in particular. My colleague has done that work as a member of the status of women committee. During testimony at that committee, Jonathan Rudin, of Aboriginal Legal Services, highlighted the government's inaction with regard to abolishing mandatory minimum sentencing and its effect on indigenous women. 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 [the 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 that he urged the committee to recommend was to bring in legislation to give judges that discretion, which the Liberals promised to do. The elephant in the room is that they did no such thing. In 2015, and it is probably worse now, the proportion of indigenous adults in custody relative to their percentage of the population was eight times higher for indigenous men and 12 times higher for indigenous women. Any measure that could address that problem head-on has to be looked at seriously, and the government's failure to address what the mandate letter by the Prime Minister told it to is a serious missed opportunity.
I promised I would focus on some of the positives in this bill, from the perspective of the NDP.
First, the elimination of so-called zombie provisions of the Criminal Code is a good thing. For example, the criminalization that has existed for anal intercourse could have been removed long ago, so we are pleased that finally the government has done it. I wish it had done that with other zombie provisions, such as water skiing at night, which remains an offence in the Criminal Code. Maybe the government will look at that one later.
Second, it is a good thing that the bill would restore the discretion of judges to impose fewer victim fine surcharges or not to impose victim fine surcharges at all. I commend the government for doing that. As I believe my Conservative colleague has also pointed out, broadening the definition of intimate partner violence is also a good step. Creating an alternate process for dealing with some of the alleged breaches of bail is another good step. Codifying the so-called ladder principle, requiring that the least onerous form of release be imposed, is a good thing.
I personally think that abolishing peremptory challenges is a good thing. Although I recognize there is disagreement among many on that, I think it is a good thing. I want to put that on the record.
On the other hand, here are some of the negative things.
Absolutely every single person we talked to said that the provision on admissibility of so-called routine police evidence is overly broad and could be problematic to marginalized people in particular. Everyone agreed that routine police evidence language has to be fixed. Many people were happy that the time of day when the offence occurred, the weather, or routine lab results would be made available. However, the way it is drafted, it could even include the ability of the crown to not have a police officer come and provide eyewitness testimony. I do not think this was intended by the government, but it is an example of what appears to be a hastily drafted bill that needs to be fixed. The irony is that most judges are going to allow cross-examination of police officers, so Sergeant Brown will have to be brought back at some later time, with more delay as a result. That is surely unintended. It is surely something we can work together to fix.
Professor Peter Sankoff of the University of Alberta went so far as to call this measure extremely dangerous and ineffective. It is not just we who are saying this.
We have heard a lot about hybrid offences today. I am sure the government would agree that there seems to be a need to change the hybridization offences aspect. As colleagues have pointed out, the downloading to provincial courts of many offences is only going to move the problem of clogged courts at the superior court level to the provincial courts because more cases will be dealt with as summary conviction matters. I wonder if the consultation with the provincial and territorial ministers has made that point clear. The provincial court in British Columbia already hears 95% of all criminal matters. I am sure it is not that much different elsewhere, so I would invite the government to consider how we can work together to address that problem of obvious downloading.
Another area of concern, perhaps a sleeper, is that the government intends to increase the maximum penalties for summary convictions. In practical terms, what that means is that agents like law students and paralegals, who are currently able to represent people accused of an offence with a maximum penalty of six months or less, will not be able to do so for a whole range of offences if these changes go forward. It is an unintended consequence, but it certainly has to be addressed, because we not only have a problem already with unrepresented people in the provincial courts and judges bending over backwards, appropriately, to help those people who cannot afford or obtain the services of a lawyer, but now they will also not be able to get paralegals or law students to represent them in some cases. That again is something that I would have thought the government did not want to occur, but it appears to be something that would occur.
Lastly, I want to acknowledge that increased funding was provided for legal aid in budget 2018. I think that is something everyone agrees was long overdue. I commend the government for doing it. However, in the province of British Columbia, as we saw in yesterday's Vancouver Sun, it is simply too little, too late. It is a gigantic increase compared to the past, but now, according to Mark Benton, the CEO of the Legal Services Society, “Many lawyers providing services to the poor are doing it at a loss—the tariffs too low for most to earn a living, and so low that LSS is having trouble attracting and retaining lawyers.” We have got to deal with that.
I talked earlier about the preliminary inquiry issue with my friend from Niagara Falls and I understand that there is a difference of opinion on this issue. However, the facts are that these proposed changes would only save about 3% of court time. While the government proudly said the legislation will reduce the use by 87%, which sounds great, it did not tell us that it is not going to save a lot of time. Then why do it? Why do it when there is a risk, according to the chair of the Canadian Council of Criminal Defence Lawyers, Bill Trudell, that there will be more wrongful convictions? Why would we take away a right? The government says we have the Stinchcombe disclosure and it is a different world from when we started with preliminary inquires, but what is the risk-benefit equation here? We are saving 3% of court time and we are causing perhaps a wrongful conviction. I do not think that lines up. It is overbroad. Therefore, I think it is something we need to worry about.
I commented on intimate partner violence and bail; in the interest of time, I will not say any more.
There is a concern about the impact of this bill on those who have suffered the legacy of residential schools and the like, such as in the sixties scoop. For example, the Criminal Lawyers' Association said as follows:
Sadly, intimate partner violence is one of the recognized legacies of residential schools and the 60s scoop. Creating a reverse onus at the bail stage and increasing the sentence on conviction will likely aggravate the crisis of the over-representation of indigenous people in our prisons.
A similar concern was echoed by Professor Elizabeth Sheehy, as well as Professor Isabel Grant, so I think we need to get our hands around this issue and figure out whether we can find another way, despite the fact that I believe it was well intentioned.
In conclusion, what I want to point out now are some of the things we think could be used to address some of these problems.
First, the government claims it has made judicial appointments, which we heard the Conservatives say as well, but there still appears to be a problem with judicial vacancies. I am not saying that is a singular solution, but it needs to be addressed as part of a comprehensive solution.
Second, as I have said, we wish the government would reconsider the failure to review mandatory minimum sentences.
Third, the NDP believes that decriminalizing small amounts of drugs in this opioid crisis that we are experiencing would definitely have an impact on the clogged courts that we face. Who are the people in our provincial courts often unrepresented? Disproportionately, they are people with mental health challenges, people with addictions, people who are poor and simply cannot afford a lawyer, and legal aid does not have the ability to look after them. That is what is clogging up the system.
If we look at it from that end of the telescope, we would make truly important reform efforts. Jagmeet Singh has made a bold statement that decriminalizing small quantities of drugs is something we need to give serious thought to as part of the solution to our clogged-up courts. Not criminalizing these issues, but treating them as mental health issues and health issues generally is the way to go. We have to find a better way.
In Vancouver and Victoria we have drug courts and some creative ways to address this problem, but they have not been adequate. We still have serious problems.
By criminalizing people, we give them criminal records. What does having a criminal record mean? It means people cannot get a job in many cases. Are we thinking about that? It is really important.
I have talked in the House many times about the injustice of thousands of Canadians having criminal records for possession of small quantities of cannabis. There are still people who are unable to find a job because they are still being charged under the current law, which is about to change. I commend the member of Parliament for Hull—Aylmer for his intention to implement a bill that would see these records expunged. I do not think that goes far enough, but I will certainly join with him in that initiative.
Finally, we would offer greater social supports. They are at the core of this issue. We need greater funding for legal aid, which would surely cut down on the number of unrepresented individuals and ensure that more accused people would have access to much-needed resources.
Earlier today, I referred to an excellent summary about the consultations that the government undertook in this regard, a March 2018 report of the Department of Justice entitled “What we Heard—Transforming Canada's Criminal Justice System”. I want to read into the record its fundamental conclusion and ask the House whether the bill does the job.
It says:
Almost all roundtable participants stressed the same major concern. They said that most people who come in contact with the criminal justice system are vulnerable or marginalized individuals. They are struggling with mental health and addiction issues, poverty, homelessness, and prior victimization. Most felt the criminal justice system is not equipped to address the issues that cause criminal behaviour in these groups, nor should it be. Participants felt these issues are worsened by an over-reliance on incarceration.
We are very much in agreement, and I hope that my hon. colleagues will consider these concerns and work with us at the justice committee to make the kinds of changes to our criminal justice system that are so obviously needed.
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