Legislative Background – An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts (Bill C-75)
Overview of Bill C-75
On March 29, 2018, the Government introduced Bill C-75, An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts.
Bill C-75 proposes to:
- modernize and clarify bail provisions;
- provide an enhanced approach to administration of justice offences, including for youth;
- abolish peremptory challenges of jurors and modify the process of challenging a juror for cause and of judicial stand-by;
- restrict the availability of preliminary inquiries;
- streamline the classification of offences;
- expand judicial case management powers;
- enhance measures to better respond to intimate partner violence;
- provide additional measures to reduce criminal justice system delays and to make criminal law and the criminal justice system clearer and more efficient;
- restore judicial discretion in imposing victim surcharges;
- facilitate human trafficking prosecutions, and allow for the possibility of property forfeiture;
- remove provisions that have been ruled unconstitutional by the Supreme Court of Canada; and
- make consequential amendments to other Acts.
(Clauses 212, 214, 217, 227-229 and 237)
The bail system is intended to ensure that: (a) persons charged with a criminal offence will attend court to answer to the charge; (b) the accused will not pose a risk to public safety prior to their trial; and (c) confidence in the criminal justice system is maintained with respect to whether or not the accused is detained in the time period before their trial.Footnote 29 Where there are concerns that any of these objectives would be met if the accused were released after arrest, police can detain the accused and bring them before a justice, where they will have a right to a bail hearing to determine if they should be released. When releasing an accused, police or courts can impose certain conditions that accused are required to follow until the end of their trial.
The challenges facing the criminal justice system, specifically regarding remand and the overrepresentation of Indigenous persons and accused from vulnerable groups who are traditionally disadvantaged in obtaining bail, call for a careful look at Canadian bail law. As noted earlier, Statistics Canada reported that 60% of adultsFootnote 30 in provincial/territorial correctional facilities and 58% of youthFootnote 31 in custody were denied bail and on remand. The current bail provisions in the Criminal Code have not been comprehensively amended since 1972, although they have been studied over the years, especially in light of the growing remand population. There have been many calls for reforms, including for comprehensive reform such as in the Senate Committee’s ReportFootnote 32, the Steering CommitteeFootnote 33 more discrete amendments from the Uniform Law Conference of Canada (Criminal Section) (e.g., Can-CBA 2012-0 on s. 525 of the Criminal Code, and BC 2010-03 on s. 516(2) of the Criminal Code (no-contact orders)). Many current bail rules are unnecessarily complex and/or redundant, which add to criminal justice system delays, without necessarily contributing to public safety.
The proposed bail amendments in Bill C-75 have also been guided by the rights of accused persons under the Charter, namely the right not to be denied reasonable bail without just cause under section 11(e), as well as the right to liberty and the presumption of innocence. The SCC in Antic (2017) recently affirmed that these rights require that an accused person not be denied bail without just cause and that any bail conditions placed on release be reasonable. The Honourable Wagner J. (now Chief Justice) writing for the Court, stated that the bail review judge’s errors in Antic were “symptomatic of a widespread inconsistency in the law of bail” and that ‘the bottom line so far has been that remand populations and denial of bail have increased dramatically in the Charter era”. The Court emphasized a number of key principles and guidelines to apply in a contested bail hearing, including that releasing the accused without conditions should be the default position when granting release and that “release is favoured at the earliest reasonable opportunity on the least onerous grounds.”
The proposed amendments would modernize and streamline the bail regime, while ensuring public safety, and help to maintain public confidence in the criminal justice system. Specifically, amendments seek to:
- streamline the process by increasing the types of conditions police can impose on accused, so as to divert unnecessary matters from the courts and reduce the need for a bail hearing when one is not warranted;
- provide guidance to police on imposing reasonable, relevant and necessary conditions that are related to the offence and consistent with the principles of bailFootnote 34;
- legislate a “principle of restraint” for police and courts to ensure that release at the earliest opportunity is favoured over detention;
- require that circumstances of Indigenous accused and of accused from vulnerable populations are considered at bail, in order to address the disproportionate impacts that the bail system has on these populations;
- create a new process, the “judicial referral hearing”, to streamline certain administration of justice offences out of the traditional court system where no harm has been caused to victims; and,
- consolidate various forms of police and judicial pre-trial release to modernize and simplify the release process.
Intimate Partner Violence
(Clauses 1(3), 95(2), 99, 227(3) & (6), 296 and 297)
Despite increased efforts over the last 30 years to address violence against intimate partners, victimization by an intimate partner is one of the most common forms of police-reported violent crimes committed against women.Footnote 35 There is no specific offence of intimate partner violence in the Criminal Code, but rather, it spans a range of conduct and offences which can be committed against intimate partners, including assault (causing bodily harm, with a weapon, and aggravated assault), kidnapping and forcible confinement, sexual assault (causing bodily harm, with a weapon, and aggravated sexual assault), criminal harassment, uttering threats, and homicide. Between one-fifth to one-third of violent intimate partners reoffend, and the majority of this recidivism (61%) occurs within six months of the previous offence, with more than one-third (37%) occurring within three months.Footnote 36
Bill C-75 proposes amendments to the Criminal Code that would:
- create a reverse onus at bail for accused charged with a violent offence involving an intimate partner, if they have a prior conviction for violence against an intimate partner;
- require courts to consider prior intimate partner violence charges when determining whether to release the accused or impose bail conditions;
- clarify that strangulation constitutes an elevated form of assault and a more serious form of sexual assault;
- defining “intimate partner” for all Criminal Code purposes and clarify that it includes current or former spouse, common-law partner and dating partner;
- make clear that current sentencing provisions, which treat abuse against a spouse or common law partner as an aggravating factor, apply to both current and former spouses/common law partners and dating partners; and,
- allow a higher maximum penalty in cases involving a repeat intimate partner violence offender.
In addition to supporting the Government’s 2015 electoral commitments to enhance victim safety and to toughen the criminal law response to domestic assault, it is expected that these amendments would standardize practices to improve the efficiency and effectiveness of the criminal justice system, while respecting the rights of the accused and maintaining public safety. Changes would further assist in improving bail court efficiencies, and better protect victims of intimate partner violence.
Administration of Justice Offences
(Clauses 214 and 236)
Administration of justice offences (AOJOs) are offences committed against the integrity of the justice system. The most common AOJOs include failing to comply with bail conditions (i.e., disobeying a curfew, drinking alcohol), failing to appear in court and breaches of probation (e.g., failing to report to a probation officer). Over the years, the number of individuals charged with AOJOs has been increasing, despite a consistent decrease in the volume and severity of crime in Canada: in 2014, police reported that the rate of persons charged with an AOJO increased by 8% since 2004 (compared to 20% decrease in rate of persons charged with other Criminal Code offences). Footnote 37
Throughout the criminal justice process, from arrest to sentencing, AOJOs affect profoundly the efficient functioning of Canada’s justice system. AOJOs represent about one-in-ten incidents reported by the police, while four-in-ten cases in adult criminal courts include at least one AOJO, most of which result in a guilty verdict and a jail sentenceFootnote 38 AOJOs have contributed to an increase in pre-trial detention, and also to the overrepresentation of Indigenous persons and of individuals from vulnerable populations in the criminal justice system.
In addition to responding to the Senate Committee’s recommendation regarding administration of justice offencesFootnote 39 and the recommendations made by the Steering CommitteeFootnote 40, the measures included in Bill C-75 would change the way certain AOJOs are processed in the criminal justice system, and, as a result, reduce their consequential pressures. It would provide an opportunity for individuals’ personal circumstances and attributes to be taken into account in dealing with these types of offences. Moreover, it would promote consistency in law enforcement approaches across Canada, reduce the increasing number of AOJO charges, ensure respect for the Canadian Victims Bill of Rights, and maintain public safety.
The proposed approach, similar to the approach taken in New South Wales (Australia) under its Bail ActFootnote 41 would provide a process to help the police and courts deal more effectively with certain AOJOs, such as failures to comply with conditions of release and failures to appear in court. When the failure has not caused harm to a victim, including physical, psychological or financial harm (e.g., property damage or economic loss), the police and Crown Attorneys could direct AOJOs to a judicial referral hearing as an alternative to charging the accused with an AOJO. At the judicial referral hearing, the judge would review any existing conditions of release and could decide to take no action, release the accused on new conditions or detain the accused, depending on the particular circumstances of the accused (e.g., mental health issues, existence of neurocognitive disorders such as FASD, addictions, homelessness).
This new procedure would not impact current police powers relating to making a decision on whether or not to lay charges. It would instead enhance police and prosecutorial discretion by allowing them to compel an accused to appear at a judicial referral hearing as an alternative to laying charges, when it is considered appropriate under the circumstances and when it is felt that the alleged breach should still be brought to the attention of a judge or justice. It would provide another tool for police, prosecutors and courts to deal more effectively with these AOJOs (i.e., failures to comply with conditions of release, and failures to appear in court or as required) not involving harm to victims (including physical, emotional and financial harm).
Since a judicial referral hearing reviews the conditions imposed after an accused was charged with an earlier offence, as opposed to considering the guilt or innocence of the accused in relation to an alleged AOJO, the AOJO itself would not appear on a criminal record. No finding of guilt or innocence would be made at the judicial referral hearing and any charges that may have been laid regarding that specific AOJO would be dismissed by the judge or the justice once a decision is made with respect to the release status of the accused.
If an accused does not attend their judicial referral hearing, they could not be charged with the offence of failure to appear: the police officer would have the choice of dropping the matter, offering the accused another hearing, or charging the accused for the breach that was to be addressed through the judicial referral hearing.
Youth Criminal Justice Act (YCJA)
(Clauses 364-366, 370-372, 374-378)
The YCJA has significantly reduced the overall use of the formal court system and custody for youth. Under the YCJA, the majority of youth accused of an offence are dealt with by means other than a charge, and the youth incarceration rate has declined 65% since 2003.Footnote 42
That said, 85% of youth accused of AOJOs are formally chargedFootnote 43, and AOJOs represent 20% of youth court cases, and 35% of cases resulting in custody.Footnote 44 These high rates of charging and custody for AOJOs remain an area of concern and contribute both to delays and to the overrepresentation of vulnerable young people and Indigenous youth in the youth criminal justice system. The aim of the proposed YCJA reforms is to strengthen aspects of the current YCJA approach so that fewer youth are prosecuted and incarcerated for AOJOs.
Too often young people, particularly vulnerable young people, are subject to a myriad of conditions, many of which relate more to their social welfare needs than to criminal justice purposes. Conditions such as curfews, or the requirement to obey parents or obey the rules of the young person’s house where they reside, often lead to breach charges for behaviour that is not otherwise criminal. Bill C-75 would require that a condition be imposed on a young person only if it is reasonable in the circumstances and required for criminal justice purposes. The Bill would also prohibit police officers and judges from detaining young persons in custody, or imposing conditions of release (in an undertaking or a release order), as a substitute for appropriate child protection, mental health or other social measures.
With respect to options for responding to AOJOs, Bill C-75 would set out the circumstances in which extrajudicial measures, which are alternatives to charges, are deemed to be adequate to hold a young person accountable for breaches of conditions and failures to appear at the bail stage, and for breaches of community-based youth sentences. Furthermore, the Bill would identify the circumstances in which the new Criminal Code judicial referral hearings at the bail stage (see above) and existing YCJA provisions relating to reviews of community sentences should be used as alternatives to charges.
Currently under the YCJA, a young person who fails to comply with a community-based youth sentence can be brought back before the youth court for a review, and the youth court judge can make changes to the original sentence. These reviews provide an opportunity to address circumstances of non-compliance without resorting to further charges and prosecution. Bill C-75 would provide the court with authority to impose, without consent of the young person, additional conditions to better protect against any risk of harm to the public or to help the young person to comply with the sentence, in circumstances where the review is held because a young person has breached, without reasonable excuse, a probation order or an intensive support or supervision order.
Finally, while the YCJA sentencing options and maximum sentence lengths would not change under Bill C-75, the criteria for custodial sentences would be modified so that AOJOs would be less likely to lead to custody for youth.
Part XVIII of the Criminal Code sets out the purpose of, and procedural rules regulating the conduct of, the preliminary inquiry. The Supreme Court of Canada clearly established in R v S.J.L. (2009) that there is no constitutional right to a preliminary inquiry and the failure to allow cross-examination is not in itself a violation of the Charter, as long as the prosecution's evidence and a summary of the witness' statement are disclosed. The use of preliminary inquiries varies across the country and, in some instances, is complemented or even replaced by an out-of-court discovery process in various court locations in Ontario and Quebec.
Although preliminary inquiries are associated with a very small proportion of the total number of completed cases in Canadian criminal courts (approximately 3% of all completed cases, a proportion that has slowly decreased over the last 10 yearsFootnote 45), restricting the availability of this procedure to offences liable to life imprisonment would significantly reduce their numberFootnote 46, while maintaining its availability for the most serious offences. This reduction will free up court time and resources in provincial courts, while alleviating the burden on some witnesses and victims by preventing them from having to testify twice in those cases.
Charges with a preliminary inquiry only accounted for 7% (N=4,610) of all the charges that exceeded the Jordan presumptive ceiling for delay in 2015/2016, but took more time to reach a final decision (median of 433 days) than charges that did not have a preliminary inquiry (median of 106 days). These charges also required more court appearances to reach a final decision (median of 13 appearances, versus 6 appearances for charges without a preliminary inquiry), and had a higher average number of days between court appearances (average of 38 days between appearances for charges with a preliminary inquiry, versus 27 days for charges without a preliminary inquiry). Statistics Canada reported similar trends for superior court charges.Footnote 47
Generally, a preliminary inquiry will take place if an accused person charged with an indictable offence elects to be tried before the Superior Court and requests one. The preliminary inquiry is to determine whether there is sufficient evidence to put the accused to trial for the offence charged or any other offence in respect of the same transaction. In this way, the preliminary inquiry serves a screening function. Over time, however, this procedure has developed other functions such as providing the Crown and the defence with an opportunity to examine and cross-examine witnesses and test their credibility.
Since coming into force on July 1st, 1893, the preliminary inquiry provisions of the Criminal Code have only been substantially modified onceFootnote 48 by the Criminal Law Amendment Act, 2001, which made the preliminary inquiry on request rather than automatic, and aimed at encouraging the parties to consider whether a preliminary inquiry is necessary in individual cases, and if so, whether the scope of the issues and duration of the hearing could be limited.
The proposed amendments in Bill C-75 would restrict preliminary inquiries for adults accused of offences liable to life imprisonment (e.g., murder, instructing the commission of an indictable offence for a criminal organization or terrorist group, etc.). The proposed changes do not impact youth tried with criminal offences under the Youth Criminal Justice Act.
Amendments would further allow the justice conducting a preliminary inquiry to limit the issues to be explored and the witnesses to be heard at the inquiry. In doing so, the amendments would help prevent vulnerable witnesses from having to testify twice, would further narrow the scope of the inquiry with a view to making it more efficient and effective, while maintaining the other benefits of this procedure such as, discovery at the earlier stages of the criminal justice process.
Preliminary inquiry reform has been a topic of debate in the Canadian legal community for decades. For instance, the Steering Committee has discussed the issue over the years, and in 2017, mandated the Department of Justice Canada to undertake a survey on preliminary inquiries.Footnote 49 As well, legal academics, such as Webster and BebbingtonFootnote 50 and DoobFootnote 51 have provided analysis and commentary on this issue.
The amendments outlined above are the result of significant discussion and consultation in various fora, including federal-provincial-territorial meetings and at meetings of the Uniform Law Conference of CanadaFootnote 52, and represents a balanced approach between those who seek a bolder direction and those who strongly oppose any changes that reduce the availability of this procedure. In Jordan, the Supreme Court of Canada notedFootnote 53 that Parliament should “consider the value of preliminary inquiries in light of expanded disclosure obligations.” Also, in its 2017 final report on delays, the Senate Standing Committee on Legal and Constitutional Affairs took a similar view as the Supreme Court of Canada’s position in Jordan by recommending that preliminary inquiries be “restricted or eliminated”.
Though a formal analysis was not conducted, it is reasonable to assume that the Supreme Court of Canada’s decision in R v Stinchcombe (1991) outlining the Crown’s disclosure obligations, had a significant impact on preliminary inquiries, including on the number of these held and/or scheduled. Furthermore, a two-phased impact assessment of amendments to the preliminary inquiry enacted by former Bill C-15A, An Act to amend the Criminal Code and to amend other Acts (S.C. 2002, c.13) was conducted by the Research and Statistics Division of the Department of Justice. The unpublished findings showed, among other things, that in the year following the implementation of Bill C-15A, Quebec had a 68% decline in the number of preliminary inquiries held while British Columbia, New Brunswick and Nunavut experienced a 20% decline; there were limited changes to the time and number of appearances required for a case with a preliminary inquiry to be processed through the court system. These results suggest that the legislative changes made by Bill C-15A may have, to some extent, reduced the number and scope of preliminary inquiries in some jurisdictions.
Reclassification of Offences
(Clauses 318 & 319 plus many others)
Criminal Code offences are classified as summary, indictable or both (hybrid). Summary offences are generally intended to target less serious conduct (e.g., causing a disturbance, trespassing at night) for which the current default maximum penalty is normally a fine not exceeding $5,000 fine, six months in prison, or both. Maximum imprisonment penalties for summary conviction offences, however, vary and some are punishable by two years less a day.
Indictable offences address more serious matters (e.g., aggravated assault, robbery, murder) for which the maximum penalties range from 2 years to life imprisonment. On indictment, the courts also have the ability to impose a fine in their discretion, in addition to other sentencing options. The third class of offences - hybrid offences - target types of conduct for which the seriousness can vary greatly depending on the circumstances of the case. Hybrid offences allow the Crown to choose whether to proceed by indictment or summary conviction. Decisions on how to proceed will be based on a variety of factors including, for example, the seriousness of the alleged conduct, any previous convictions, and the type of sentence the Crown intends to seek, given all the circumstances of the alleged offence and offender.
Offence classification determines where the case can be heard depending on the seriousness of the conduct, background of the offender and impact on victims. It is not simply a reflection of the seriousness of the offence, based on the hypothetical worst case. All summary conviction matters are tried in the provincial courts. The vast majority of criminal matters are heard by provincial court judges across Canada. Indictable offences can be heard in both provincial and superior courts, depending on the election of the accused, although there are some indictable offences that can only be heard in superior court. Generally speaking, matters that are tried in provincial court tend to proceed more quickly. Provincial court cases had a median case length of 120 days and a median of 5 appearances; superior court cases had a median case length of 565 days and a median of 15 appearances.Footnote 54 The hybridization of a number of indictable offences in Bill C-75 would provide prosecutors with the flexibility to proceed summarily for a greater number of offences, in appropriate cases, leaving the more serious cases involving these offences to be tried by the superior courts, with or without a jury. This would help to ensure that these cases would be dealt with more expeditiously and would also help to ensure that superior courts would address the most serious matters.
Bill C-75 proposes to hybridize 136 indictable offences. Of these, 40 offences are punishable by a maximum penalty of 10 years imprisonment, a further 55 offences are punishable by a maximum of 5 years imprisonment and 41 are punishable by a maximum of two years imprisonment. In addition to hybridizing offences, Bill C-75 would change the default maximum penalty for summary conviction offences from 6 months to 2 years less a day of imprisonment; and, extend the limitation period for all summary conviction offences to 12 months (from the current 6 months). A limitation period is the time frame within which a charge, to be tried by summary conviction procedure, must be laid, as calculated starting from the date of the alleged offence. This change complements the broader changes to offence classification. It would ensure that police officers have time to investigate the more complex cases and provide the Crown with the flexibility to proceed in provincial court for a greater number of less serious cases. A broader range of offences being hybridized will result in more efficient prosecutions, ensuring that cases are tried according to the seriousness of the alleged commission of the offence, and not simply the worst hypothetical case. This will have a positive impact on bringing accused persons to trial within a reasonable time, as required by the Charter.
This is also expected to assist in reducing delays in the superior court, including the time from first appearance to disposition of criminal cases. Hybridization assists in ensuring that the additional procedural safeguards available when proceeding by indictment, including preliminary inquiries and jury trials, continue to be made available for more serious cases and that the sentence sought justifies these additional processes. These amendments would also ensure that sentencing ranges reflect the manner in which offences are prosecuted and would reduce the number of offences being prosecuted by indictment when a summary conviction penalty is most appropriate. The same resulting sentence could be achieved through summary conviction processes with less strains on the criminal justice system.
The proposed harmonization of the default maximum penalty of two years less a day for summary conviction offences would ensure a consistent and clear standard. Although the proposed change to the default maximum penalty would also mean that, for some existing summary conviction offences, the maximum penalty would increase, it is important to note that this change is not a signal from Parliament that these offences should be punished more seriously. That is not the objective of the proposed change, nor is it the anticipated effect. Rather, the goal is to standardize the approach to summary conviction offences after years of piecemeal reform to maximum penalties and limitation periods. The fundamental principles of sentencing continue to apply, so that sentences imposed should always be proportionate to the seriousness of the actual commission of the offence, including impact on victims, and the offender's degree of blameworthiness. Hybridization is not a reflection of the seriousness of the offence, but the degree of seriousness of the actual commission of that offence, taking into consideration all of the circumstances.
Judicial Case Management
(Clauses 252, 253 and 269)
Judicial case management is repeatedly cited as one of the key measures to improve the efficiency and effectiveness of the criminal justice system. As noted by the SCC in Cody (2017), judges are uniquely positioned to encourage and foster the culture change required to ensure the proper functioning of the system. Effective judicial case management ensures the prioritization and careful balancing of court resources. Enhanced case management refers to stronger judicial control of proceedings, whereby judges exercise a more active leadership role in ensuring that cases progress in a just and timely manner.
Furthermore, in their Final Report, the Senate Committee included as a priority recommendation “that the Minister of Justice work with the provinces and territories and in particular with the judiciary to:
- stress the need for judges to improve case management, such as by imposing deadlines and challenging unnecessary adjournments, using the tools that already exist; and
- consider making amendments to the Criminal Code to support better case management as necessary.”Footnote 55
In 2011, amendments to the Criminal Code granted case management powers to a judge where it is necessary for the proper administration of justice. These are broad powers and encompass scheduling, evidentiary, procedural and substantive issues. When properly mobilized by a case management judge, proceedings can be streamlined, litigation focused and case momentum maintained through setting deadlines and ongoing oversight.
Section 551.1 of the Criminal Code generally regulates the appointment of a case management judge, including the timing of the application for this appointment (i.e., for indictable offences to be tried before the Superior Court, after the indictment is filed). Some have argued that this timing is too late in the process to fully benefit from the case management judge’s involvement and assistance at the early stages of the process.
The proposed amendments are intended to strengthen the powers of case management judges by, among other things, allowing for their appointment at the earliest point in the process, ensuring they be involved in prompt resolution of preliminary issues and management of cases, and to assist in the timely and just completion of criminal matters.
Furthermore, criminal cases are generally tried in the community in which the offence has allegedly occurred. However, section 599 of the Criminal Code allows a judge of the court before whom the accused is to be tried, to order, in certain circumstances, that the trial be held in a different location within the province. A change of venue seeks to safeguard the accused person’s and society’s interests in a fair trial.
The amendments would give a case management judge the express ability to make change of venue orders. Permitting this at the earlier stages of the process would prevent a potential duplication of efforts and expending resources where preparations are made at one location, only to be moved to another location later in the process. In deciding whether to order a change of venue, the Court would have to consider whether it would promote a fair and efficient trial and ensure the safety and security of a victim or witness or protect their interests and those of society.
These amendments to the Criminal Code speak directly to the work of the Steering Committee on this priority areaFootnote 56 as well as the Senate Committee’s recommendation to enhance case management by providing additional tools and the earlier exercise of these tools.Footnote 57
Routine Police Evidence
(Clauses 278 and 294)
The presentation of evidence in a criminal trial often results in police officers being taken off the street for extended periods of time in order to give testimony on issues that are frequently uncontested and/or peripheral to the key issues in the proceedings. Allowing the use of written evidence with regard to routine police evidence would be expected to reduce the time and financial burden on police officers who are required to testify in court over lengthy periods of time, or provide the same evidence twice (for example, in a preliminary inquiry and at trial). As well, these measures would increase efficiencies in court by minimizing some of the time spent on hearing undisputed oral testimony from police officers in circumstances, where that testimony could be provided in writing without negatively impacting the accused’s right to full answer and defence.
Consistent with the Senate Committee’s recommendation to this effectFootnote 58, the Bill proposes measures that would enable certain evidence of police officers to be received in writing, rather than by the more time-consuming oral testimony:
- to make admissible at trial the transcript of testimony given by a police officer earlier in the proceedings, either at the preliminary inquiry or on a voir dire (for example, a voir dire on the constitutionality of the accused’s arrest)(Clause 294); and,
- to give the court discretion, in any proceeding, to admit the evidence of a police officer by way of an affidavit, rather than by requiring the officer to testify (Clause 278). Unlike most existing measures that allow for certain evidence to be provided to the Court in writing (e.g. drug analysis certificates and breathalyzer analysis certificates), a routine police evidence affidavit would not be presumptively admissible. The Court is to be guided by the overall question of whether receiving the evidence in the form of an affidavit would be in the interests of justice. Specific factors to guide this exercise of the Court’s discretion include, whether the evidence is central or peripheral to the matter before the Court, whether the accused intends to challenge the evidence, and the accused’s right to full answer and defence. Even if the evidence is received in writing, the Court can still require the attendance of the police officer for the purpose of being cross-examined by the accused, wherever there is a basis for doing so.
Rules of Court
(Clauses 188(1), 188(2), 189(2) and 309)
Sections 482 and 482.1 of the Criminal Code allow courts to make rules, including case management rules, to regulate certain court functions and delegate certain administrative tasks to court personnel. The rules of certain courts under these provisions are subject to the approval of the lieutenant governor in council of the province. Also, section 745.64 allows the appropriate Chief Justice to set out the procedural application process to seek the reduction in the number of years of imprisonment without eligibility for parole for certain offences. Rules made pursuant to section 745.64 are “statutory instruments” for the purposes of the Statutory Instruments Act (SIA), and thus are subject to examination by the Department of Justice to, among other things, optimize the quality of the text and ensure their coherence with other federal legislative texts in accordance with the criteria set out in the SIA. Rules made under sections 482 and 482.1 are not “statutory instruments”, and thus are not subject to this examination. Rules made under the three provisions noted above must be published in Part II of the Canada Gazette.
The administrative process by which these rules are enacted can result in unnecessary delay in their implementation. In light of Jordan, courts are also engaged in implementing additional measures, some by way of rules of court, to ensure the timely completion of criminal matters. As such, amendments to the Criminal Code would expedite the rule-making process and ensure their effective and prompt implementation by removing the requirement in the Criminal Code that the rules of certain courts need to be approved by the lieutenant governor in council and that rules of court enacted under these provisions must be published in the Canada Gazette. Although the publication requirement would be maintained to maximize access to justice, courts would choose the most appropriate medium by which this can be achieved (i.e., on their website, provincial Gazettes or case law reports). Bill C-75 would state that the SIA does not apply to rules made under 745.64.
Additional Efficiency Measures
(Clauses 1(2), 190, 218, 227(2), 293, 295)
Currently, the general rule is that all persons involved in the criminal justice process must appear in person, unless otherwise specified in the Criminal Code.
The Criminal Code currently includes numerous provisions relating to the remote appearance of certain individuals involved in criminal justice processes. However, these are subject to different criteria depending on the individual (e.g. accused, witness, counsel) and stage of the proceedings (e.g., judicial interim release, preliminary inquiry, trial, appeal, etc.).
The proposed amendments are intended to modernize and facilitate the appearance by audioconference or videoconference of all persons involved in criminal cases, including a judge or justice, throughout the criminal justice process, under certain circumstances and, in some situations, in consideration of certain factors.
These amendments would serve the proper administration of justice, including by ensuring fair and efficient proceedings and enhancing access to justice for all Canadians. These amendments would set out the situations in which a remote appearance can occur, which will depend on the individual circumstances and stage of the process and, in some situations, such factors as: the accused’s right to a fair trial; the nature of the witness’s anticipated evidence; the inconveniences to the witness to appear physically; the seriousness of the offence; and costs. In certain situations, the Court would be required to record the reasons for refusing to order a remote appearance or for holding a hearing remotely.
In their Final Report, the Senate Committee recommendedFootnote 59 that the “Minister of Justice ensure that resources are invested in technological solutions to the problems presented by small, scattered populations in remote and isolated communities”. The Report specifically called for increased use of videoconferencing technology “so that court appearances such as bail hearings and interlocutory applications can be conducted remotely and without the need for an accused person to be removed from his or her community.”
The amendments in Bill C-75 directly responds to this recommendation by expanding the use of technology to facilitate remote appearances by all persons involved throughout the criminal justice process, including in remote and isolated communities.
(Clauses 270(1) and (2))
Most criminal charges do not result in trials and are resolved by either guilty pleas or charges being dismissed. A guilty plea can spare victims from testifying, save court time and provide some certainty to the accused on the outcome of their case, including in some instances, a reduced sentence.
Currently, subsection 606(1.1) of the Criminal Code provides that a court may accept a guilty plea only if it is satisfied:
- that the accused is making the plea voluntarily;
- that the accused understands that a guilty plea is an admission of the essential elements of the offence and the nature and consequences of the plea; and,
- that the accused understands that the court is not bound by any agreement with the prosecutor.
Accused who are innocent may falsely plead guilty for ulterior reasons, such as being denied bail or wanting to avoid a lengthy wait for trial. It is not known how often false guilty pleas occur, but concerns have been raised about the potential prevalence of this issue, particularly with respect to Indigenous accused and accused from vulnerable populations (e.g., those who suffer from mental health issues, addictions, neurocognitive disorders, etc.) who may plead guilty without fully appreciating the circumstances of the offence or the significance of a guilty plea.Footnote 60 The proposed amendment would provide greater clarity to the current plea inquiry process in order to add a requirement in subsection 606(1.1) that the Court be satisfied that the facts support the charge before the Court accepts a guilty plea. The amendment mirrors a similar provision contained in the YCJA that applies to youth in the criminal justice system. The change is intended to provide an additional safeguard against false guilty pleas, while continuing to encourage early case resolution, enhance the integrity of the administration of justice, and strive for efficiencies.
(Clauses 2, 4(1), 30-31, 181, 187, 266, 267)
While provincial Attorneys General have primary responsibility for criminal prosecutions in Canada, the Attorney General of Canada (AGC), through the Public Prosecution Service of Canada, prosecutes:
- all federal offences outside the Criminal Code (including drug offences in the Controlled Drugs and Substances Act), which employ the procedures under the Criminal Code;
- Criminal Code offences in the three Territories; and,
- certain Criminal Code offences, under circumstances as expressly set out in law (for example, terrorism offences, securities fraud offences, and organized crime) throughout Canada.
The Criminal Code contains specific rules regarding the powers of the AGC to prosecute certain offences or to invoke criminal procedures.
The proposals seek to modernize and consolidate these authorities to make clearer that where the AGC is the prosecutor, they can prosecute all related aspects of the case, including the inchoate form of the offence (e.g., attempt or conspiracy to commit), and all ancillary and related proceedings (e.g., forfeiture and proceeds of crime).
(Clauses 3, 264(1,2), 287, 289 (1-4), 321 and 287, 333-337, 341-348, 350-356)]
A clerk of the court will most often prepare court orders or other documents reflecting judicial pronouncements made from the bench, and sign such documents. Likewise, clerks of the court are permitted to prepare and sign many Criminal Code forms which record a judicial pronouncement. At common law, the act of preparing and signing court documents is considered administrative in nature and can be delegated to clerks of the court. Currently, only a few Criminal Code provisions specifically provide that a clerk of the court can prepare and sign such documents. This creates a lack of uniformity in the Criminal Code with respect to which court documents a clerk of the court may sign.
In addition, the signature line of a number of forms does not reference “clerk of the court” even though the purpose of some forms is to record a judicial pronouncement. Furthermore, the names of judicial officers on the signature line are not consistently set out for some of those forms.
The proposed amendments would provide for the signing authority of clerks of the court who record judicial pronouncements made from the bench, unless otherwise provided for in the Criminal Code or ordered, and would codify the common law regarding the authority of judicial officers to delegate to clerks of the court the administrative act of signing court documents that records such pronouncements. Amendments would also be made to the signature line of some Criminal Code forms to add greater clarity and consistency surrounding the authority of clerks of the court to sign forms that are used to record judicial pronouncements made from the bench.
Clarifying the authority of a clerk of the court to sign such documents is intended to facilitate the administration of justice and enhance efficiencies in criminal court case processing.
Re-election Timeframe for Mode of Trial
Re-election by accused after the completion of the preliminary inquiry
Currently, the Criminal Code provides that an accused may re-elect another mode of trial other than a trial by a provincial court judge (namely, judge alone or judge and jury) as of right, at any time during their preliminary inquiry or before the 15th day following its completion. Further, the Criminal Code specifies that after this period, the accused may only re-elect with the written consent of the prosecutor.
This period (i.e., before the 15th day following the completion of the preliminary inquiry) is considered too restrictive and limits the accused’s opportunity to fully assess the numerous issues related to their re-election. The period of time during which an accused can re-elect as of right must be sufficient to allow them to take the necessary steps to make an informed decision on re-election, but should not unnecessarily prolong the period so as to impact the effectiveness of the criminal justice system.
The proposed amendment would amend the current timeframe to allow the accused to re-elect a mode of trial at any time during their preliminary inquiry or before the 60th day following the completion of the preliminary inquiry. This balanced approach would provide sufficient time for the accused to fully assess the evidence adduced at the preliminary inquiry in order to make an informed decision with respect to re-election, while bringing a sense of finality to the accused’s election soon after the preliminary inquiry.
Re-election by accused before the first day appointed for trial
Currently, subsection 561(2) of the Criminal Code provides that an accused who elects to be tried by a provincial court judge or does not request a preliminary inquiry may, not later than 14 days before the first day appointed for trial, re-elect as of right to another mode of trial; after that time, written consent of the prosecutor is required. A re-election at such a late point in the proceedings (i.e., 14 days before the day first appointed for trial) results in the cancellation of the trial, negatively impacting the efficiency of the criminal justice system as a result of, among other things:
- the resources required to summon witnesses to trial have likely already been invested;
- the additional resources required to notify witnesses that their subpoenas are cancelled;
- the inconveniences experienced by witnesses; and,
- the court time that was reserved for the trial becomes available, in most cases, too late to be used for another trial or procedure.
To address this issue, the Criminal Code would be amended to provide that an accused may re-elect as of right another mode of trial, not later than 60 days before the first day set for trial. This would ensure that steps required to prepare for trial (as noted above) are not taken unnecessarily where the trial is cancelled as a result of the re-election. It would also provide, in some cases, sufficient lead time to allow for the re-allocation of court time and resources to other matters. Accused persons would retain the ability to re-elect another mode of trial after that timeframe with the written consent of the prosecutor.
(Clauses 19, 68, 154, 182, 183, 193(1)(2), 194, 195, 197, 198, 199, 203, 209, 210, and 388)
The endorsement of an out-of-province warrant by a judicial officer in the executing jurisdiction is one mechanism by which the Criminal Code makes a warrant valid for execution in another province. The proposal would remove the out-of-province endorsement requirements for search warrants and wiretap authorizations in the Criminal Code and the Controlled Drugs and Substances Act, and provide that these warrants, authorizations and investigative orders have effect anywhere in Canada upon issuance by a justice or a judge. These amendments would contribute to streamlining investigative procedures by saving valuable time as well as police and judicial resources.
Removing this requirement also implements a 2016 recommendation by the Uniform Law Conference of Canada working group on endorsements of out-of-province search warrants, which was of the view that the out-of-province investigative warrants and wiretap authorizations can be more effectively executed by making warrants enforceable across Canada without the need for endorsement.
Continuation of trial without jury
A mistrial ordered as a result of a jury being reduced to below the minimum ten jurors is an unfortunate interruption in the pursuit of justice. Such orders have significant repercussions on criminal justice system resources, are distressing to those involved, the jurors and the witnesses, and undermine public confidence in the administration of justice.
The Criminal Code currently allows for 13 or 14 jurors to be sworn where the trial judge considers it advisable in the interests of justice. In making this decision, the judge considers, among other things, the risk that a mistrial could result from the discharge of too many jurors.
Furthermore, the Criminal Code provides that, unless the court is satisfied that it would not be in the interests of justice, rulings on preliminary motions (disclosure, admissibility of evidence, and Charter motions) made during the first trial are binding in any new trial resulting from a mistrial. Therefore, there may be greater incentive to simply continue the proceedings without the jury, rather than seeking a new trial and start from the presentation of the evidence on the merits before another jury.
Additionally, although the judge’s role in a jury trial is primarily to adjudicate questions of law, the judge nonetheless follows the evidence adduced very closely as it is the judge’s responsibility to, among other things, determine its admissibility and to rule on all objections. Moreover, in jury trials, judges generally include a summary of the evidence in their charge to the jury.
The proposed amendments would, on consent of the parties, allow a judge to continue the trial without the jury and render a verdict when the jury is reduced to below ten jurors. Although this would not be utilized in all cases, it would prevent some mistrials as there will be some situations where accused persons will prefer an expedient resolution of their case and choose to continue the trial with a judge sitting without the jury rather than starting a new trial.
Power to stand aside jurors
Section 633 of the Criminal Code gives a judge the power to stand aside (or “stand by”) jurors for reasons of personal hardship or any other reasonable cause. The term “other reasonable cause” includes obvious instances of juror bias (e.g., where a juror is related to a witness in the case). The effect of standing aside a juror is to enable the judge to move to the next prospective juror and in cases where a full jury is subsequently confirmed, those who were stood aside are dismissed.
Section 633 of the Criminal Code would be amended to permit a judge to stand aside a juror to maintain public confidence in the administration of justice. This tool would help to ensure that potential jurors are impartial and capable of performing their duties, if selected. The concept of maintaining public confidence in the administration of justice is already used in other parts of the Criminal Code and has been interpreted by the SCC in St-Cloud (2015) in the context of bail. In this context, decisions would be made on a case by case basis and be based on all relevant circumstances, including the importance of ensuring that the jury is impartial, competent and representative. The proposed amendment would recognize and enhance the role of judges in promoting an impartial, representative and competent jury.
Section 634 of the Criminal Code sets out the rules governing peremptory challenges. Peremptory challenges are a set number of challenges given to both Crown and defence counsel during jury selection. These challenges may be used at their discretion to exclude a potential juror from the panel without providing a reason. In some cases, this has led to their discriminatory use to ensure a jury of a particular composition, an issue that was recently litigated before the Yukon Court of Appeal in R v Cornell (2017). The number of peremptory challenges currently allowed generally varies from 4 to 20 depending on the seriousness of the crime, the number of jurors, and whether there are co-accused.
Discrimination in the jury selection process in Canada has been well-documented. Retired Supreme Court Justice Frank Iacobucci discussed how peremptory challenges could be used in a discriminatory mannerFootnote 61. The Report recommended further consideration of this issue with a view to possible Criminal Code amendments to prevent the discriminatory use of peremptory challenges. Senator Murray Sinclair also documented the discriminatory use of peremptory challenges and recommended that they be abolishedFootnote 62. Similar calls for reform have been made by legal experts and advocacy groups, such as the Aboriginal Legal Services of TorontoFootnote 63.
Bill C-75 proposes to abolish peremptory challenges. This approach is consistent with other common law countries laws, such as England, Scotland and Northern Ireland. Abolishing peremptory challenges would address the concern that this aspect of the jury selection process may be used to discriminate unfairly against potential jurors and would strengthen public confidence in the jury selection process. The proposed amendments signal that discrimination of any kind has no meaningful role in promoting fairness and impartiality in the criminal justice process.
Challenge for cause
The challenge for cause process is frequently used and is considered an important aspect of jury selection that aims to ensure only eligible and impartial jurors are selected to try a case. Currently, a challenge for cause (section 638 of the Criminal Code) occurs where Crown or defence counsel seek to exclude a potential juror on the basis of one or more of the following grounds:
- the name of the juror does not appear on the panel;
- the juror is biased;
- the juror has been convicted and sentenced to more than 12 months imprisonment;
- the juror is an “alien” (i.e., not a Canadian citizen);
- the juror is physically unable to perform the duties of a juror; and,
- the juror does not speak the official language of the trial.
With the exception of a person’s name not appearing on the panel, which is determined by the trial judge, all other challenges for cause are currently decided by two lay persons called “triers”, who are not trained in law. This process sometimes involves the same two triers or different “rotating” triers. The process has led to confusion and delays in jury trials across Canada. The proposed change would shift the responsibility to judges – who are trained and impartial adjudicators – to oversee the challenge for cause process in order to improve the efficiency and effectiveness of the process.
This change would implement a recommendation of the Steering CommitteeFootnote 64, and would also bring Canada’s challenge for cause process in line with that of other common law countries, such as England, New Zealand and Australia.
As well, Bill C-75 would amend the challenge for cause ground based on a juror’s criminal record. Currently, jurors may be excluded for cause if they have been convicted of an offence and sentenced to more than 12 months imprisonment. The amendment would modify the period of imprisonment from 12 months to 2 years. This change would mean that fewer jurors with criminal records for minor offences could be excluded in the challenge for cause process, and is consistent with the Bill’s proposed changes to increase the maximum penalty for summary conviction offences to 2 years less a day (rather than 6 months). The proposed change seeks to address concerns that have been raised that this rule disproportionately impacts certain segments of society, including Indigenous persons, as noted by Justice Iacobucci.
Other reforms to the challenge for cause grounds would be made to update and modernize outdated language (i.e., reference to a juror being an “alien” would be replaced with “non-citizen”).
Other YCJA Amendments
(Clauses 379 to 381)
Several of the other YCJA amendments are proposed in a manner consistent with the Supreme Court’s direction in Jordan to take “a fresh look at rules, procedures, and other areas of the criminal law to ensure that they are more conducive to timely justice and that the criminal process focuses on what is truly necessary to a fair trial”.
Obligation to consider seeking adult sentence Footnote 65
Bill C-75 would remove the obligation on prosecutors to consider seeking adult sentences for serious violent offences and the obligation to advise the court if they decide not to seek an adult sentence. These requirements create an unnecessary procedural obligation, given that prosecutors can be relied upon to consider seeking adult sentences in appropriate cases without the law specifically requiring them to do so. In addition, these requirements may inappropriately interfere with prosecutorial discretion.
Lifting publication bans on youth sentences
Bill C-75 would also repeal the provisions in the YCJA which require a youth justice court to decide, in every case where a young person receives a youth sentence for a violent offence, if the publication ban protecting that young person’s identity should be lifted. This requirement has been in place since 2012 and while it has created additional burdens for the court, orders for the lifting of a publication ban under this provision have rarely, if ever, been made.
This provision is also at odds with a traditional cornerstone of youth justice in Canada which has generally protected the privacy of young persons involved in the youth criminal justice system. The rationale for this longstanding rule is that the publication of a young person’s name would detrimentally affect the young person, impede rehabilitation efforts and in the long run, compromise public safety. Certain exceptions exist, such as when a youth receives an adult sentence.
Placement reports Footnote 66
Finally, Bill C-75 would be amended to remove the obligation on the youth justice court to order a placement report in each instance where a young person receives an adult sentence. Instead, such reports would be ordered at the youth justice court’s discretion, when it is of the view that such a report would be of assistance to the court in deciding on the placement of the young person. As it stands, the current obligation contributes to delay in many situations where the placement decision is readily apparent to all parties involved.
Bill C-75 will also include the following amendments to ensure that the Criminal Code is closely aligned with the Charter and promote greater consistency and respect for the Charter, while at the same time, seek to address inefficiencies in the criminal justice system.
Victim surcharge (Bill C-28)
Bill C-75 incorporates the proposals included in Bill C-28, An Act to amend the Criminal Code (victim surcharge). These proposals aim to restore judicial discretion in imposing victim surcharges.Footnote 67
Currently, the victim surcharge is imposed automatically on sentencing. The amendments would enable the Court to exempt an offender from the payment of a victim surcharge when the payment would cause the offender undue hardship. The amendments would also provide courts with guidance on what constitutes undue hardship. If Bill C-75 is passed, a victim surcharge would be paid for each offence, with an exception for certain administration of justice offences if the total amount of surcharges imposed on an offender would be disproportionate in the circumstances. Courts would be required to provide reasons for the exemption from the payment of a victim surcharge.
Forcing offenders to pay when they are truly incapable of doing so cannot be said to benefit victims as no money can be collected to pay the victim surcharge. Further, mandatory application of the federal victim surcharge to all offenders, even those who genuinely lacked the ability to pay, has resulted in a number of Charter challenges.
The proposed amendments would address concerns related to the adverse impacts on Indigenous people and individuals from vulnerable populations that are overrepresented in the criminal justice system, without negatively impacting victims. The proposed amendments would also address efficiencies in the justice system as the offenders who truly are unable to pay would not need to seek from the court multiple extensions to pay the victim surcharge.
Exploitation and trafficking in persons (Bill C-38)
Bill C-75 also includes the proposals that are proposed by Bill C-38, An Act to amend An Act to amend the Criminal Code (exploitation and trafficking in persons). Bill C-38 would facilitate the bringing into force of amendments that would facilitate the prosecution of human trafficking offences under the Criminal Code as well as add the trafficking in persons offence to the list of offences to which a reverse onus applies in proceedings for the forfeiture of proceeds of crime.
Unconstitutional provisions (Bill C-39)
Lastly, Bill C-75 includes the proposals found in Bill C-39, An Act to amend the Criminal Code (unconstitutional provisions) and to make consequential amendments to other Acts. These proposals would amend the Criminal Code to, among other things:
- remove provisions that have been ruled unconstitutional by the Supreme Court of Canada;
- repeal section 159 of the Criminal Code and provide that no person shall be convicted of any historical offence of a sexual nature unless the act that constitutes the offence would constitute an offence under the Criminal Code if it were committed on the day on which the charge was laid; and,
- make consequential amendments to the Corrections and Conditional Release Act and the Youth Criminal Justice Act.
Coming into force
The amendments relating to bail and administration of justice offences, including amendments to Youth Criminal Justice Act, would come into force 180 days after Bill C-75 receives Royal Assent to provide additional time for implementation of these measures, including training for police and Crown prosecutors.
The amendments relating to reclassification, preliminary inquiries, judicial case management, Youth Criminal Justice Act (other than those relating to administration of justice offences) and all additional efficiency measures would come into force 90 days after the Bill receives Royal Assent.
The amendments relating to victim surcharge (former Bill C-28) would come into force 30 days after the Bill receives Royal Assent.
As was proposed in Bill C-38, the amendments relating to exploitation and trafficking in persons (former Bill C-452) would come into force upon Royal Assent of Bill C-75, with the exception of the amendment that would provide consecutive sentences for offences relating to trafficking in persons, which would come into force on a day fixed by order of the Governor in Council.All proposed amendments in Bill C-39 that have been included in Bill C-75 would come into force on Royal Assent with one exception. The amendment to subsection 719(3.1) of the Criminal Code, removing the limits to credit for presentencing custody that were found unconstitutional, would come into force 180 days after Bill C-75 receives Royal Assent.
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