Charter Statement - Bill C-75: An Act to Amend the Criminal Code, Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts
Tabled in the House of Commons, March 29, 2018
The Minister of Justice prepares a “Charter Statement” to help inform public and Parliamentary debate on a government bill. One of the Minister of Justice’s most important responsibilities is to examine legislation for consistency with the Canadian Charter of Rights and Freedoms [“the Charter”]. By tabling a Charter Statement, the Minister is sharing some of the key considerations that informed the review of a bill for consistency with the Charter. A Statement identifies Charter rights and freedoms that may potentially be engaged by a bill and provides a brief explanation of the nature of any engagement, in light of the measures being proposed.
A Charter Statement also identifies potential justifications for any limits a bill may impose on Charter rights and freedoms. Section 1 of the Charter provides that rights and freedoms may be subject to reasonable limits if those limits are prescribed by law and demonstrably justified in a free and democratic society. This means that Parliament may enact laws that limit Charter rights and freedoms. The Charter will be violated only where a limit is not demonstrably justifiable in a free and democratic society.
A Charter Statement is intended to provide legal information to the public and Parliament on a bill’s potential effects on rights and freedoms that are neither trivial nor too speculative. It is not intended to be a comprehensive overview of all conceivable Charter considerations. Additional considerations relevant to the constitutionality of a bill may also arise in the course of Parliamentary study and amendment of a bill. A Statement is not a legal opinion on the constitutionality of a bill.
The Minister of Justice has examined Bill C-75, An Act to Amend the Criminal Code, Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts, for consistency with the Charter pursuant to her obligation under section 4.1 of the Department of Justice Act. This review involved consideration of the objectives and features of the Bill.
What follows is a non-exhaustive discussion of the ways in which the Bill potentially engages the rights and freedoms guaranteed by the Charter. It is presented to assist in informing the public and Parliamentary debate on the Bill.
Bill C-75 would amend the Criminal Code, the Youth Criminal Justice Act and other Acts, to reduce delays in the criminal justice system and to make it more modern and efficient. These amendments would respond to the Supreme Court of Canada decisions in R. v. Jordan (2016) and R. v. Cody (2017), and also address concerns identified in the June 2017 Senate Report “Delaying Justice is Denying Justice”. Bill C-75 proposes broad changes, including with respect to modernization and clarification of bail, the way administration of justice offences are addressed, preliminary inquiries, the classification of a number of criminal offences, and judicial case management. Many of the issues that Bill C-75 seeks to address have disproportionate impacts on groups that are over-represented in Canada’s criminal justice system, in particular Indigenous persons and individuals from vulnerable populations including persons with mental illness and addictions. Bill C-75 seeks to address these issues while maintaining the safety of victims and the public.
The current Bill also includes the legislative amendments contained in Bill C-28, An Act to amend the Criminal Code (victim surcharge), Bill C-38, An Act to amend An Act to amend the Criminal Code (exploitation and trafficking in persons),and Bill C-39, An Act to amend the Criminal Code (unconstitutional provisions) and to make consequential amendments to other Acts. Charter statements for these three bills have already been tabled and the content is reproduced below to assist in informing the public and Parliamentary debate on the current Bill.
The main Charter-protected rights and freedoms potentially engaged by the proposed measures include:
- Freedom of expression (section 2(b)) – Section 2(b) of the Charter protects freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.
- Right to life, liberty and security of the person (section 7) – Section 7 of the Charter guarantees to everyone the right to life, liberty and security of the person, and the right not to be deprived thereof except in accordance with the principles of fundamental justice. These principles include the requirement that laws which engage these rights must not be arbitrary, overbroad or grossly disproportionate. An arbitrary law is one that impacts section 7 rights in a way that is not rationally connected to the law’s purpose. An overbroad law is one that is so broad in scope that it includes some conduct that bears no relation to its purpose. A grossly disproportionate law is one whose effects on section 7 rights are so severe as to be “completely out of sync” with the law’s purpose.
- Right to a fair trial and to make full answer and defence (sections 7 and 11(d)) – Together, sections 7 and 11(d) of the Charter protect the right of persons charged with an offence to a fair trial and to make full answer and defence. This includes a right to engage in a full cross-examination of Crown witnesses, without significant and unwarranted constraint.
- Right to a trial within a reasonable time (section 11(b)) – Any person charged with an offence has the right to be tried within a reasonable time.
- Right to be presumed innocent until proven guilty (section 11(d)) – Any person charged with an offence has the right to be presumed innocent until proven guilty by the prosecution beyond a reasonable doubt in a fair and public hearing by an independent and impartial tribunal.
- Right not to be denied reasonable bail without just cause (section 11(e)) – Section 11(e) of the Charter guarantees that any person charged with an offence has the right not to be denied reasonable bail without just cause. Section 11(e) enshrines a basic entitlement to pre-trial release for accused persons, rooted in the presumption of innocence and the right to liberty. The terms and conditions of such release must be “reasonable” in the circumstances. The right to bail can only be denied with “just cause”.
- Right to trial by jury (section 11(f)) – Any person charged with an offence has the right to the benefit of a trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment.
- Protection against cruel and unusual treatment or punishment (section 12) – Section 12 of the Charter guarantees the right not to be subjected to any cruel and unusual treatment or punishment. In the context of sentencing, section 12 prohibits grossly disproportionate punishments. The courts have found some mandatory minimum penalties to constitute grossly disproportionate punishment.
- Right to equality (section 15(1)) – Section 15(1) protects equality rights. It provides that every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination, including on the grounds of race or mental or physical disability.
For the purpose of this Statement the amendments in the Bill have been grouped into the following categories: bail; administration of justice offences; intimate partner violence; preliminary inquiries; reclassification of offences; guilty pleas; admission of routine police evidence and transcripts of police evidence; remote appearances; Youth Criminal Justice Act amendments; reforms to the jury selection process; and reintroduction of legislative amendments from other bills.
The Bill would modernize the provisions for police pre-trial release, including by simplifying the available forms of release, expanding and clarifying the kinds of release conditions that can be imposed by a peace officer, and explicitly enacting a “principle of restraint” for pre-trial release. These amendments promote the timely release of accused persons with the least onerous conditions that are appropriate in the circumstances. In this way, the amendments promote Charter values, in particular the right to liberty, the presumption of innocence, and the right not to be denied reasonable bail without just cause.
Similarly, the Bill proposes changes to the judicial pre-trial release provisions, including by clarifying the “ladder principle” that requires the imposition of the least onerous form of release, making it clear that a monetary pledge should be favoured over a cash deposit, and enacting a specific principle of restraint for the use of surety release. These amendments would partially codify the guidance set out by the Supreme Court of Canada in R v Antic (2017), and also promote the Charter values identified in the preceding paragraph.
Clause 227 would amend subsection 515(6) of the Criminal Code to establish a reverse onus on bail for persons alleged to have committed an offence involving violence against their intimate partner if that person has been previously convicted of an intimate partner violence (IPV) offence. A reverse onus bail provision departs from the general approach to bail in two respects: (1) it presumes that bail should be denied and that the accused should be detained pending trial; and (2) it requires the accused to demonstrate on a balance of probabilities why he or she should be released pending trial, having regard to the three statutory grounds for pre-trial detention: flight risk, public safety and public confidence in the administration of justice (subsection 515(10) of the Criminal Code). To be consistent with section 11(e) of the Charter, a reverse onus needs to amount to a “just cause” for denying bail, meaning that denial of bail must occur only in a narrow set of circumstances, and the denial must be necessary to promote the proper functioning of the bail system and not undertaken for any purpose extraneous to the bail system.
The following considerations support the consistency of Clause 227 with section 11(e) of the Charter. First, the reverse onus would result in a limited restriction on the entitlement to bail rather than an absolute denial of it. It would only result in a denial of bail for those accused persons who cannot demonstrate on a balance of probabilities that none of the three statutory grounds for pre-trial detention applies in their case. Second, the reverse onus would be restricted in its application to certain accused persons who have previously been convicted of an IPV offence. As a group, these individuals have been found to pose an elevated risk of violence, escalating the risk of reoffending towards their intimate partners. Therefore, the proposed reverse onus is narrowly tailored to promote the proper functioning of the bail system, specifically by ensuring public safety.
Clause 228 would establish new procedural requirements before a particular person can be named as a surety. A surety is an individual designated by the court to supervise an accused person who has been granted bail, and to ensure that the accused fulfills the pledge to appear for trial. Clause 228 would require a potential surety to provide a signed declaration to the court, setting out some listed facts about the individual, along with several acknowledgements relating to the responsibilities assumed by a surety. This is intended to be an efficient way to standardize the basic information provided to courts, for the purpose of assessing the suitability of proposed sureties. However, clause 220 would have potential impacts on the accused: if a particular surety cannot fulfill these requirements, then that could impede the ability of the accused to secure pre-trial release and a court could be required to find other means of constituting “reasonable bail”.
The following considerations support the consistency of Clause 228 with section 11(e) of the Charter. First, these requirements are rationally related to the proper functioning of the justice system, because they promote efficient bail hearings and effective assessments of whether an individual is an appropriate surety. Second, the presiding judge has discretion to exempt a potential surety from the declaration requirement, where appropriate.
The Bill would amend the provisions for mandatory judicial reviews of pre-trial detention orders, so that these reviews must occur every 90 days for all accused persons. This would not change the frequency of mandatory review for those charged with indictable offences, but it would decrease the frequency for those charged with an offence prosecutable on summary conviction. Such individuals are currently entitled to have their detention reviewed every 30 days. Therefore, this change has potential impacts on these individuals’ Charter rights, in particular the section 7 right to liberty and the section 11(e) right not to be denied reasonable bail without just cause, because it is possible that there will be fewer mandatory judicial hearings to review the denial of bail.
The following considerations support the consistency of these changes with the Charter. First, if the judge is concerned that the proceedings are progressing slowly and that an unreasonable delay may result, the judge can direct that the proceedings be expedited and require that the next mandatory judicial hearing occur sooner than the default 90-day period. Second, if the accused person wishes to have their detention reviewed before the next mandatory hearing, he or she has a right under section 520 of the Criminal Code to apply “at any time” for a review of the detention order.
Administration of justice offences
Clauses 214 and 236 would create an alternative mechanism for responding to certain administration of justice offences (e.g., failure to appear and non-compliance with bail conditions), where the failure in question has not caused harm to victims. Typically, under the current law, cases involving a breach of a condition or a failure to appear will result in a new charge being laid or bail being revoked. The Bill would create a regime that enables the police to decline to charge the individual but require them to attend court for a judicial referral hearing. At the hearing, the justice would have a number of options, including taking no action, varying the terms and conditions of release, or revoking bail (for those who had violated a condition of bail). Once a decision is made, no further charges may be laid for the failure that was the subject of the hearing.
The judicial referral hearing has potential impacts on the Charter rights of accused persons, in particular the right to liberty and the right not to be denied reasonable bail without just cause. However, the hearing may be considered consistent with these Charter rights, because the presiding justice will have the discretion to respond to the breach in a context-dependent manner taking into account the Charter interests of the accused. Compared to the current alternatives of charging or revoking bail, the breach referral hearing would facilitate a less intrusive and more tailored response by the criminal justice system to certain administration of justice offences.
Intimate partner violence
Clause 297 would create a new provision in the sentencing part of the Criminal Code that would allow the Crown to seek to have a higher maximum penalty where an offender is being convicted on indictment of a second or subsequent offence involving violence against an intimate partner.
Clause 296 would amend the sentencing provisions in subparagraph 718.2(a)(ii) to specify that evidence that an offender abused their intimate partner in committing an offence is an aggravating factor for sentencing purposes. It will also clarify that both current and former spouses/common law partners and dating partners are included in the definition of intimate partner for these purposes.
These provisions have the potential to engage section 12 of the Charter which protects against cruel and unusual treatment or punishment. Their application may result in the imposition of a higher sentence for an offender who commits an offence after the coming into force of the provisions than for an offender who commits an offence and is sentenced prior to the amendments coming into force.
The following factors support the consistency of the measure with the Charter. As noted above, section 12 of the Charter protects against punishment or treatment that is grossly disproportionate in the circumstances. Higher maximum penalties are unlikely to breach section 12 because courts retain the necessary judicial discretion to impose proportionate sentences. While a disproportionate sentence in an individual case could be corrected on appeal, the validity of the underlying sentencing provision would not be in question.
A preliminary inquiry is a hearing to determine whether there is enough evidence to require an accused person to stand trial for an alleged offence. Currently a preliminary inquiry will take place if: (a) an accused person is charged with an indictable offence (other than certain excluded offences) and elects to be tried before a superior court; or (b) is charged with an offence listed in section 469 of the Criminal Code, and requests that one be held. The Bill would restrict the availability of preliminary inquiries for adult accused to offences liable to life imprisonment (e.g. murder, commission of an indictable offence for a criminal organization or terrorist group, kidnapping, arson).
The following considerations support the consistency of the reforms with the fair trial rights of the accused. As confirmed by the Supreme Court of Canada in R. v. S.J.L.(2009), there is no constitutional right to a preliminary inquiry and the discovery function of the inquiry itself is satisfied by compliance with the obligations on the Crown to disclose relevant evidence to the accused. The elimination of the preliminary inquiry for certain offences may lead to speedier trials, thus protecting the right of the accused to be tried within a reasonable time as protected by section 11(b) of the Charter.
The amendments also would provide that the preliminary inquiry justice may limit the scope of the preliminary inquiry to specific issues and limit the witnesses to be heard on these issues. The statutory right in paragraph 540(1)(a) of the Criminal Code of the accused or counsel for the accused to cross-examine the prosecution’s witness at a preliminary inquiry would remain. This recognizes that the justice has the power to regulate the inquiry and to ensure that inquiries are conducted in an efficient manner. The justice would be required to exercise this power in a manner to promote a fair and expeditious inquiry. In so doing, the justice would take account of the rights of the accused to both a fair procedure and a trial within a reasonable time.
Reclassification of offences
The Bill would hybridize, with some exceptions, all indictable offences in the Criminal Code which are currently punishable by a maximum penalty of 10 years or less. The result of hybridization is that those offences could now be prosecuted either as an indictable offence or as a summary conviction offence. This requires amendments to offences throughout the Criminal Code. The Bill would also increase the default maximum penalty to two years less a day for all summary conviction offences; the maximum fine that could be imposed for summary conviction offences would remain $5,000. In some cases, this would mean that the available maximum penalty of imprisonment on summary conviction would be increased because those offences are currently subject to a maximum penalty of imprisonment of less than two years less a day, for example six or 18 months.
These changes have the potential to engage section 12 of the Charter which protects against cruel and unusual treatment or punishment. Their application may result in the imposition of a higher sentence for an offender who commits an offence after the coming into force of the provisions than for an offender who commits the same offence and is sentenced prior to the amendments coming into force.
The following factors support the consistency of the measure with the Charter. As noted above, section 12 of the Charter protects against punishment or treatment that is grossly disproportionate in the circumstances. Higher maximum penalties are unlikely to breach section 12 because courts retain the necessary judicial discretion to impose proportionate sentences. While a disproportionate sentence in an individual case could be corrected on appeal, the validity of the underlying sentencing provision would not be in question.
Some of the offences that would be hybridized or whose summary conviction penalty would be standardized carry mandatory minimum penalties ranging from mandatory fines to mandatory terms of imprisonment. For example, section 255 of the Criminal Code provides mandatory minimum fines and mandatory terms of imprisonment for the offences of impaired driving and failure to comply with a valid demand (e.g., for a breath sample). The minimum penalties range from a fine of $1,000 for a first offence, to imprisonment for not less than 30 days for a second offence, to 120 days imprisonment for each subsequent offence. The Bill would amend paragraph 255(1)(c) to increase the maximum penalty of imprisonment on summary conviction from 18 months to two years less a day. This change is also proposed by Bill C-46, An Act to amend the Criminal Code (offences relating to conveyances) that is currently before the Senate.
As part of this reclassification, the Bill would amend the offence of publishing a defamatory libel, knowing it to be false, so that a person would be liable on summary conviction to a term of imprisonment of two years less a day. The offence of publishing defamatory libel knowing it to be false prohibits unjustifiable attacks on a person’s reputation. While this offence has the potential to interfere with freedom of expression as protected by section 2(b) of the Charter, in R. v. Lucas (1998)the Supreme Court of Canada upheld this offence as a reasonable limit on freedom of expression under section 1 of the Charter.
In addition to hybridizing section 440 of the Criminal Code (the offence of removing materials that form a natural bar), Clause 170 would repeal its reverse onus. Currently, if a person charged under section 440 wishes to advance the defence that he or she had written permission of the Minister of Transport, the burden is on the accused to prove Ministerial permission on the balance of probabilities. This engages section 11(d) of the Charter, because it could result in an accused person being convicted under section 440 even if there was a reasonable doubt as to guilt.
By repealing the reverse onus in relation to the defence of written permission, Clause 170would remove the persuasive burden currently placed on the accused, so that he or she would only need to lead evidence to raise a reasonable doubt as to whether there was written permission from the Minister of Transport. Therefore, Clause 170 promotes respect for the section 11(d) right to be presumed innocent until proven guilty beyond a reasonable doubt.
Coordinating amendments with Bill C-46, An Act to amend the Criminal Code (offences relating to conveyances)
This Bill also contains coordinating amendments with Bill C-46, An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts. Bill C-46 proposes to modernize the Criminal Code’s transportation offences, including impaired driving offences. If enacted, Bill C-46 would retain existing mandatory minimum penalties (MMPs), and introduce new ones.
These new penalties include mandatory minimum fines for first offences of driving with a high blood alcohol concentration (BAC) in the form of a $1,500 fine for a driver with a BAC of 120 mgs of alcohol per 100 ml of blood and a $2,000 fine for a driver with a BAC of 160 mgs of alcohol per 100 ml of blood or for a driver who refuses to comply with a valid demand.
Mandatory minimum sentencing provisions have the potential to engage section 12 of the Charter which protects against cruel and unusual treatment or punishment because they have the potential to require departures from the general principle of proportionality in sentencing. When there is an MMP the judge’s ability to fashion a sentence that is fit and proportionate in the circumstances may be limited.
The following considerations support the consistency of the MMPs at issue with the Charter. The existing MMPs for impaired driving are among the lowest in the Criminal Code. The MMPs are founded on the sentencing principles of denunciation, and general and specific deterrence including in the case of escalating penalties for repeat offenders. Impaired driving is a serious offence, carrying a high level of moral blameworthiness and MMPs serve to denounce and deter this conduct which is a leading cause of criminal death and injury in Canada. Further, the MMPs for impaired driving do not attach to a broad array of circumstances but rather apply to a narrow range of serious conduct carrying a high degree of blame. Given the seriousness of the conduct and the importance of deterrence, the MMPs are not grossly disproportionate.
The higher fines for drivers with high BACs, proposed in Bill C-46, create stronger penalties where an individual has chosen to drive in a state where they are highly intoxicated. This reflects an increased penalty for behaviour that is particularly dangerous and reckless. High BACs are commonly considered aggravating factors in sentencing decisions, and, under the current Criminal Code, a BAC of 160 mg/100ml (twice the legal limit) or higher must be considered as an aggravating factor. The penalties in question are modest in the sense that they are monetary fines, and not mandatory terms of imprisonment. They also fall at the bottom of the range of sentences generally handed out by courts in these circumstances.
For the legislative scheme to function as intended, the MMP for refusal must match the minimum penalty for an impaired driving offence that could have been discovered by compliance with the demand. The $2,000 MMP for refusal removes any incentive the driver may have to refuse to comply with a demand made by a police officer. As with the MMPs for driving “over 80,” this penalty is a monetary fine and not a sentence of imprisonment. Punishment in the form of monetary fines has, generally speaking, not been found to constitute grossly disproportionate punishment given the mechanisms available to alleviate financial hardship on offenders who are unable to pay in the prescribed time.
Clause 270 would amend the plea provisions of the Criminal Code to require the court to be satisfied that the facts support the charge, as a condition for accepting a guilty plea. This requirement is already contained in section 36 the Youth Criminal Justice Act (YCJA) as a recognition of the vulnerability of youth. The amendment is in recognition that many adults in the criminal justice system are also vulnerable and it would provide an additional safeguard against an innocent accused pleading guilty due to being denied bail and/or trying to avoid a lengthy wait for trial, while promoting respect for the rights to liberty and to a fair trial as protected by sections 7 and 11(d) of the Charter.
Admission of routine police evidence and transcripts of police evidence
Clause 278 would allow for the introduction of certain evidence by police officers in written form. This is a departure from the typical approach to evidence in criminal proceedings, especially trials, which involves evidence introduced through oral testimony and an opportunity for cross-examination. Clause 265 would allow routine police evidence, if otherwise admissible through testimony, to be admitted into evidence in criminal proceedings via affidavit or solemn declaration. The presiding judge would have discretion whether to allow admission of this evidence in written form. The judge would also have discretion to require the attendance of the officer in court, for an examination-in-chief and/or a cross-examination. This could be done on the judge’s own motion or at the request of a party.
Similarly, Clause 294 would establish that transcripts of police evidence are admissible in criminal trials, where that evidence had been given in the presence of the accused at a voir dire or preliminary inquiry on the same charge. The presiding judge would have discretion to require the attendance of the officer in court, for an examination-in-chief and/or a cross-examination.
The following considerations support the consistency of Clauses 278 and 294 with the Charter, in particular with the right to a fair trial and to make full answer and defence (sections 7 and 11(d)). Most importantly, in both scenarios the presiding judge would have discretion to require testimony from the officer in question, including cross-examination. Where effective protection of the accused’s Charter rights would require the judge to call the police officer for cross-examination, the judge would be able to do so. Furthermore, with respect to Clause 278, the routine police evidence would need to be “otherwise admissible”, and the judge would be empowered to decide against admitting the evidence in written form if appropriate. The judge’s discretion in this regard would be guided by enumerated factors, including the accused’s right to make full answer and defence, and the importance of promoting a fair and efficient trial. With respect to Clause 294, the accused would have been present at the initial judicial hearing where the police evidence was given, and so the accused will have benefited from procedural protections at that time, typically including an opportunity for cross-examination of the police witness.
The Bill would amend the Criminal Code to modernize and facilitate the appearance by audioconference or videoconference of all individuals involved in criminal cases, including a judge or justice, throughout the criminal justice process.
The court would be empowered to allow the use of such technology to facilitate the remote appearances at any stage of the process under certain circumstances, and in some situations in consideration of certain factors (e.g., the accused’s right to a fair trial; the nature of the witness’ anticipated evidence; the seriousness of the offence; costs).
The purpose of these amendments is to serve the proper administration of justice, including by ensuring fair and efficient proceedings, while respecting the accused’s rights to a fair trial and to make full answer and defence as protected by sections 7 and 11(d) of the Charter. The use of these tools would be discretionary, thus permitting the court to balance the relevant considerations.
Youth Criminal Justice Act amendments
The Bill would make various YCJA amendments to encourage a more flexible response to administration of justice offences, both at the bail stage and where a young person breaches the conditions of a community-based (non-custodial) sentence. The amendments would: encourage increased reliance on extrajudicial measures where appropriate; incorporate the new breach referral hearing and adapt it to the YCJA context; and require review by the Attorney General of any charges laid or recommended against a youth in relation to a breach of conditions or failure to appear, when the charge for the original substantive offence is stayed or withdrawn. The amendments also increase the availability of judicial review of non-custodial youth sentences, while allowing the reviewing court to impose additional or more onerous sentence conditions where appropriate. Finally, the amendments further restrict the circumstances in which a custodial sentence could be imposed on a young person due to an administration of justice offence.
Certain aspects of these proposals have potential impacts on the Charter rights of young persons accused of criminal offences, in particular the right to liberty and the right not to be denied reasonable bail without just cause. The breach referral hearing could result in the young person being remanded to custody pending trial or the imposition of more onerous terms and conditions of release. Similarly, the amendments to non-custodial sentence review could result in the imposition of more onerous terms and conditions of a sentence. However, these amendments are consistent with Charter rights, because the presiding justice will have discretion to respond to the breach in a context-dependent manner taking into account the Charter rights of the young person. Compared to the alternatives of charges or bail revocation, these amendments promote a less intrusive and more tailored response by the criminal justice system where a young person breaches the terms and conditions of a bail order or a non-custodial sentence.
Clauses 364 to 377 would modernize the YCJA provisions for police and judicial pre-trial release. In addition, the YCJA amendments would codify a principle of restraint for conditions imposed on judicial release, and explicitly prohibit the imposition of pre-trial release conditions and the use of detention as a substitute for appropriate social measures (e.g. child protection or mental health). These amendments promote the timely release of young persons with the least onerous conditions that are appropriate in the circumstances. In this way, the amendments promote Charter values, in particular the right to liberty, the presumption of innocence, and the right not to be denied reasonable bail without just cause.
Similarly, the Bill would enact a principle of restraint in relation to conditions imposed at sentencing. This would promote Charter values because it would seek to further minimize the restrictions on liberty that result from a sentence under the YCJA.
Reforms to the jury selection process
The Bill would amend the Criminal Code to abolish peremptory challenges, empower the judge to decide all challenges for cause, and enact other measures to strengthen the jury selection regime.
Currently, both the prosecutor and the accused are entitled to the same number of peremptory challenges, the exact number varying depending on the nature of the offence. A peremptory challenge allows either the prosecutor or the accused to exclude a potential juror without giving a reason. This has led to concerns that these challenges can be used in a discriminatory fashion by the prosecutor and the accused. In addition, the prosecutor and the accused have an unlimited number of challenges for cause based on the grounds set out in the Criminal Code. These challenges will remain in the Criminal Code after this Bill is brought into force. The elimination of peremptory challenges from the Criminal Code may engage the fair trial rights of the accused as protected by sections 11(d) and 11(f) of the Charter.
The following considerations support the consistency of this measure with the Charter.
The Charter requires trial by an independent and impartial decision-maker and protects the right to an impartial and representative jury. The Supreme Court has held that challenges for cause are an essential safeguard of the accused’s right to a fair and impartial jury. As an unlimited number of challenges for cause remain to eliminate potential jurors who are not capable of acting impartially in a given case, the accused’s fair trial rights are protected.
The Bill would modernize the language found in paragraph 638(1)(d) of the Criminal Code which permits a prosecutor or an accused to challenge a juror for cause on the ground that the juror is an “alien”. This language would be modernized to provide that a juror who is not a Canadian citizen may be challenged for cause. The exclusion of permanent residents from serving as jurors may engage their equality rights as protected under section 15(1).
The following considerations support the consistency of this measure with the Charter. As in all democratic societies, citizenship is a status to which certain rights, privileges, and obligations attach. Service on juries has historically been viewed as one of the duties that are corollaries to the rights associated with citizenship. Jurors are required to be citizens because, as triers of fact in a criminal trial, they are directly participating in an adjudicative decision and are involved in the process or structure of government (broadly defined). The requirement for jurors to be Canadian citizens facilitates jurors’ important function in the criminal justice process and enhances the accused’s and public’s confidence in the jury.
Reintroduction of legislative amendments from other bills
This Bill also includes the legislative amendments contained in Bills C-28, An Act to amend the Criminal Code (victim surcharge), Bill C-38, An Act to amend An Act to amend the Criminal Code (exploitation and trafficking in persons) and Bill C-39, An Act to amend the Criminal Code (unconstitutional provisions) and to make consequential amendments to other Acts. Charter statements for these three Bills have already been tabled and the content is reproduced below to assist in informing the public and Parliamentary debate on this Bill.
Bill C-28, An Act to amend the Criminal Code (victim surcharge) now incorporated into Bill C-75
Charter considerations relating to the current victim surcharge provisions
The victim surcharge is an additional (monetary) penalty of a fixed amount, which is automatically imposed on adult offenders at the time of sentencing. Where an offender is sentenced for multiple offences under the Criminal Code and/or the Controlled Drugs and Substances Act at the same time, a victim surcharge is imposed for each offence on a cumulative basis.
Section 12 of the Charter prohibits grossly disproportionate punishments. In certain circumstances, the current surcharge provisions may require judges to impose significant surcharge amounts, for example when multiple surcharges are cumulatively imposed on offenders in relation to certain administration of justice offences that do not cause harm to a victim. This has the potential to be found to constitute grossly disproportionate punishment.
Section 15(1) of the Charter protects equality rights. In certain circumstances, the surcharge provisions may have disproportionate impacts on members of marginalized groups in society, and these impacts have the potential to be found discriminatory.
Clause 304: Discretion for judges in certain circumstances
The Bill would address these Charter considerations by specifically introducing judicial discretion in certain circumstances. For example, judges would have the discretion to exempt an offender from payment of the surcharge if the offender establishes that payment would cause “undue hardship”, as defined in the amended provisions. This will promote core values that underpin the Charter, including liberty, equality, and the right not to be subjected to any cruel and unusual punishment.
The most significant amendments for this purpose are those in Clause 304: the offence-based exception in subsection 737(1.1), and the “undue hardship” exemption established by subsections 737(5) to (6.1) inclusive.
Subsection 737(1.1) provides judges with the discretion to impose fewer surcharges than the number of offences that have been committed when the total amount of surcharges would be disproportionate and where some of the offences relate to failures to appear before a court or breaches of conditions of release when the breach did not cause a victim physical or emotional harm, property damage or economic loss.
Subsection 737(5) provides an offender with the right to apply to be exempted from having to pay a victim surcharge, and allows a judge to approve such an application where the offender has satisfied the judge that the payment would cause undue hardship. Undue hardship in these circumstances is defined in subsection 737(6) and means the offender is unable to pay a victim surcharge on account of the offender’s precarious financial circumstances, including because of their unemployment, homelessness, lack of assets or significant financial obligations towards their dependants.
These amendments would provide judges with discretion that could be exercised in accordance with established sentencing principles and the Charter. Perhaps most importantly from a Charter perspective, these amendments would allow judges to consider the circumstances of individual offenders (including marginalized offenders) where the offender is being sentenced for certain administration of justice offences, or where the “undue hardship” exemption applies.
Bill C-38, An Act to amend An Act to amend the Criminal Code (exploitation and trafficking in persons) now incorporated into Bill C-75
Promoting Charter values, including the right not to be subjected to any cruel and unusual treatment or punishment (section 12 of the Charter)
Former Bill C-452, An Act to amend the Criminal Code (exploitation and trafficking in persons), received Royal Assent in June, 2015 but has yet to be proclaimed in force. Bill C-452 would amend the Criminal Code by enacting section 279.05. This provision would require the imposition of consecutive sentences for human trafficking offences, and other related offences arising out of the same event(s), many of which are punishable by mandatory minimum sentences of imprisonment. Most human trafficking offences carry mandatory minimum penalties, ranging from 1 to 6 years. Because mandatory minimums have the potential to unjustifiably limit the section 12 Charter protection against cruel and unusual punishment or treatment, and the addition of a consecutive sentence requirement increases this concern, this Bill would bring into force all of former Bill C-452 except for its mandatory consecutive sentencing provision.
More specifically, section 279.05 has the potential to be found to unjustifiably limit section 12 of the Charter. The section 12 right against cruel and unusual punishment has been held by the courts to protect against the imposition of grossly disproportionate sentences of imprisonment. While generally offences arising out of the same event(s) are served concurrently, section 279.05 would require that such sentences be served consecutively where an offender is sentenced at the same time for a human trafficking offence and any other offence arising out of the same event(s). In terms of section 12 of the Charter, this provision could be particularly concerning where the conduct involves the commission of multiple trafficking and other offences, for example in relation to multiple victims, which may carry mandatory minimum penalties. Courts would be obliged to impose such sentences consecutively, without regard to an offender’s specific circumstances, which could lead to grossly disproportionate sentences in some reasonably foreseeable circumstances. A grossly disproportionate sentence is by definition one that is “so excessive as to outrage standards of decency” and “abhorrent or intolerable” to society. Such an outcome could limit the right against cruel and unusual punishment that is protected by section 12 of the Charter.
Not bringing section 279.05 into force is consistent with the Government’s commitment to respect and uphold the Charter. It would also allow the Government to continue with its careful study of related mandatory sentencing provisions as part of the broader criminal justice system review. In the meantime, the other provisions of Bill C-452 would be brought into force; they are consistent with Charter values and strengthen Canada’s criminal law response to human trafficking and exploitation.
The right to be presumed innocent until proven guilty (section 11(d) of the Charter)
In addition, Bill C-452 would amend the Criminal Code by enacting subsection 279.01(3). Subsection 279.01(3) allows prosecutors to prove one of the elements of the human trafficking offence— that the accused exercised control, direction or influence over the movements of a victim— by establishing that the accused lived with or was habitually in the company of the victim. Usually, prosecutors need to prove all elements of an offence beyond a reasonable doubt through direct or circumstantial evidence. In this case, although the accused would be given the opportunity to raise a reasonable doubt, the prosecutor would only need to prove that the accused lived with or was habitually in the company of the victim to make out one of the elements of the trafficking offence—control, direction or influence over the victim’s movements. For this reason, subsection 279.01(3) may be considered an exception to the Charter-protected right of accused persons to be presumed innocent until proven guilty (section 11(d)). Any limitation of section 11(d) of the Charter must be reasonable and demonstrably justified in a free and democratic society, as required by section 1 of the Charter.
The Supreme Court of Canada upheld a similar evidentiary presumption in the context of prostitution-related offences, in its 1992 R. v. Downey decision. The following considerations support the justification of the evidentiary presumption in subsection 279.01(3). First, more effectively prosecuting human traffickers is a pressing and substantial objective. Second, the presumption itself is a reasonable one to draw. Third, it has a minimal impact on the presumption of innocence, because it affects only one element of the offence and is rebuttable if the accused points to evidence that raises a reasonable doubt. Finally, the presumption is a tailored response to unique evidentiary difficulties that can arise in human trafficking prosecutions, due to the vulnerability of the victims and the power imbalance between victims and traffickers. For example, vulnerable complainants often fear reprisal from their exploiters and, as a result, have difficulty coming forward.
Bill C-39, An Act to amend the Criminal Code (unconstitutional provisions) and to make consequential amendments to other Acts now incorporated into Bill C-75
Promoting the rule of law by repealing or amending invalid Criminal Code provisions
The Bill would repeal or amend several Criminal Code provisions that the Supreme Court of Canada has previously found to be of no force or effect because of inconsistency with the Charter:
- Loitering (paragraph 179(1)(b)), found unconstitutional in R. v. Heywood (1994);
- Spreading false news (section 181), found unconstitutional in R. v. Zundel (1992);
- Unlawful object murder (paragraph 229(c)), part of which was found unconstitutional in R. v. Martineau (1990);
- Murder in the commission of offences (section 230), found unconstitutional in R. v. Martineau (1990);
- Impaired driving– presumption of accuracy of breath or blood samples (paragraphs 258(1)(c) and (d)), parts of which were found unconstitutional in R. v. St-Onge Lamoureux (2012);
- Abortion (section 287), found unconstitutional in R. v. Morgentaler (1988); and
- Credit for pre-sentence custody in sentencing (subsection 719(3.1)), part of which was found unconstitutional in R. v. Safarzadeh-Markhali (2016).
These proposed changes would promote the rule of law, which the Charter’s preamble recognizes as one of Canada’s founding constitutional principles.
The Charter is a part of the Constitution of Canada, which is the supreme law of the land. Parliament, in enacting new legislation, must make every effort to respect the Charter. Canadian courts determine whether a law is consistent with the Charter. Laws found by the courts to be inconsistent with the Charter are invalid, depriving them of legal force or effect. This affirms the priority of the Charter and the rule of law.
A judicial declaration that a law is inconsistent with the Charter does not automatically remove unconstitutional provisions from the statute books, since changing the text of federal laws requires an Act of Parliament. Parliamentary repeal or amendment of invalid legislation can be considered a final step that fully vindicates the rule of law, since it ensures that the law “on the books” reflects the actual state of the law in Canada. This is Bill C-39’s overall purpose and effect.
The repeal of provisions of the Criminal Code finally declared invalid by the Supreme Court of Canada, as well as the amendment of provisions to remove language declared invalid by the Supreme Court of Canada, do not raise any significant new impacts on Charter-protected rights and freedoms beyond the general promotion of the rule of law.
The Bill also includes amendments to repeal the prohibition on anal intercourse (section 159), initially proposed in Bill C-32, An Act related to the repeal of section 159 of the Criminal Code. Although the Supreme Court of Canada has never considered the constitutionality of section 159, it has been found to violate the Charter by courts in five provinces and the Federal Court of Canada. The following was tabled as the Charter statement for Bill C-32.
Repealing section 159 of the Criminal Code
Anal intercourse is the modern term for “buggery”; it was originally prohibited by the “buggery” offence. Other types of sexual activity that were historically considered to be “immoral” or “unnatural,” but did not involve intercourse, were prohibited by the “gross indecency” offence. In 1969, the Criminal Code was amended to decriminalize “buggery” and “gross indecency” between married persons of the opposite sex and between adults who were at least 21 years old, provided that the conduct was consensual and took place in private. In 1988, the “gross indecency” offence was repealed, the “buggery” offence was re-named “anal intercourse” and the applicable age of consent was lowered from 21 to 18 years.
The offences prohibiting “buggery” and “gross indecency” found their origin in antiquated sodomy laws and were included in Canada’s first Criminal Code in 1892.
The Criminal Code’s general sexual assault offences (sections 271 to 273) and child-specific sexual offences (e.g., sections 151 to 153) capture all non-consensual sexual activity, including sexual activity with persons below the age of consent. These prohibitions apply to the full range of sexual acts.
The Criminal Code sets the age of consent for sexual activity at 16 years. In certain circumstances, such as where there is a relationship of trust, dependency or authority or the relationship is otherwise exploitative of the young person, the age of consent is 18 years.
- (i) equality impacts
The repeal of section 159 of the Criminal Code would promote the equality rights protected by subsection 15(1) of the Charter, which provides that everyone is equal before and under the law. Section 159 prohibits anal intercourse, except by a husband and wife or two persons who are both 18 years or older, and where the act is consensual and takes place in private. The offence has had a disparate impact on homosexual males, whose consensual sexual activities have been uniquely targeted for prohibition under the Criminal Code.
In addition, courts in five provinces as well as the Federal Court of Canada (Trial Division) have found section 159 to unjustifiably discriminate on the prohibited grounds of sexual orientation, age and marital status.
- (ii) liberty and autonomy impacts
The repeal of section 159 would also promote the liberty interests protected by section 7 of the Charter. Liberty is promoted both because a prosecution under section 159 could result in a sentence of imprisonment, and because section 159 captures consensual sexual activities.
Section 7 of the Charter protects against deprivations of liberty that do not accord with the principles of fundamental justice. This includes protection against laws that are arbitrary, overbroad or grossly disproportionate. Section 159 is open to challenge on all three grounds.
Proposed section 156 of the Criminal Code
The general sexual assault and child sexual offences apply to sexual offending that is alleged to have occurred since those offences came into force in 1983 and 1988 respectively. The repealed offence provisions would continue to be available to prosecute conduct that is alleged to have occurred prior to 1983, before the general sexual assault provisions came into force. Some of these repealed offence provisions, which were enacted pre-Charter, may not comply with today’s Charter standards. In some cases, such offence provisions (including buggery and gross indecency) are still needed to prosecute alleged historical sexual offending that would constitute an offence if committed today. Such conduct must be prosecuted under the offences that existed at the time the criminal conduct is alleged to have occurred. The enactment of proposed section 156 would limit any such prosecutions to those that do not raise Charter concerns. In particular, section 156 would prevent the use of these repealed offences to prosecute sexual activity that was consensual when it occurred and that would be legal under today’s laws.
Although the application today of certain repealed sexual offence provisions could negatively impact sections 7 and 15 of the Charter for reasons similar to those mentioned above in relation to section 159, section 156 is intended to limit the scope of conduct liable to prosecution within boundaries that respect the Charter.
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