5. Legislation

Former Bill C-5, An Act to amend the Criminal Code and the Controlled Drugs and Substances Act

Context: Former Bill C-5 proposed sentencing reforms to make the criminal justice system fairer and more efficient for all Canadians and received Royal Assent and came into force on November 17, 2022. It also supports the Government’s commitment to address the ongoing opioid crisis.

If asked about the decriminalization of drugs:

If asked about the Supreme Court’s decision in R. v. Sharma:

Context:

On December 7, 2021, you introduced former Bill C-5 (An Act to amend the Criminal Code and the Controlled Drugs and Substances Act). It received Royal Assent and came into force on November 17, 2022. Former Bill C-5 reformed three areas of the law. First, it repealed mandatory minimum penalties (MMPs) for all offences in the Controlled Drugs and Substances Act and certain offences in the Criminal Code that have most contributed to the overincarceration of Indigenous people, Black persons, racialized people and members of marginalized communities. Second, it increased the availability of conditional sentencing orders (CSOs), allowing judges to impose sentences that reflect the seriousness of the offence while increasing public safety. Finally, it allowed for greater use of early diversion programs for the simple possession of controlled drugs, and further provided that past and future convictions for simple possession of controlled drugs are to be kept separate and apart from other criminal convictions after a certain period of time.

The Supreme Court of Canada Decision in R. v. Sharma

On November 4, 2022, the Supreme Court of Canada found that certain restrictions to the availability of conditional sentences for offences punishable by a maximum term of imprisonment of 14 years or life, and for offences punishable by a maximum of 10 years imprisonment that involve the import, export, trafficking and production of drugs, are consistent with section 7 (life, liberty and security of the person) and section 15 (equality) of the Canadian Charter of Rights and Freedoms. Bill C-5 nevertheless repealed those restrictions because they limited judicial discretion in cases where a conditional sentence might otherwise be warranted.

Statistics on the Overrepresentation of Indigenous People and Black Canadians in the Prison System

Indigenous people, Black persons and members of marginalized communities are overrepresented in the criminal justice system, both as offenders and victims. In 1999-2000, Indigenous people represented about 2% of the Canadian adult population, but approximately 17% of admissions to sentenced custody in provincial, territorial and federal institutions.

However, 2020-2021 data indicates that Indigenous people represent 32% of those in federal prisons, but only account for 5% of the general population. Similarly, in 2020-2021, Black individuals represented 9% of offenders under federal jurisdiction, compared to only 4% of the general population. (Sources: Office of the Correctional Investigator, Statistics Canada’s Population and Demography Statistics.Footnote 1)

Data shows that, between 2007-2008 and 2016-2017, Black and other racialized offenders were more likely to be admitted to federal custody for an offence punishable by an MMP. It also shows that the proportion of Indigenous offenders admitted with an offence punishable by an MMP has significantly increased over the past 10 years. (Source: Correctional Service of Canada). Further, between 2010-2011 and 2019-2020, drug offences comprised 54% of all offences punishable by an MMP for which offenders were admitted to federal custody.

Statistics on Canadians with Mental Health or Substance Use Disorder and Contact with the Criminal Justice System

According to the 2012 Canadian Community Health Survey, Canadians with a mental or substance use disorder are nine times more likely to come into contact with police for problems with their emotions, mental health or substance use, and four times more likely to be arrested than Canadians without a mental or substance use problem.

Bill C-9: Reform of the Judicial Conduct Process

Topic: How will this Bill put an end to the millions paid out in legal fees over the last few years related to judicial conduct inquiries? Why does this Bill contain a statutory appropriation, a provision allowing for the payment of certain process costs directly from the Consolidated Revenue Fund (CRF)?

Context: Bill C-9, introduced in December 2021, proposes amendments to the Judges Act aimed at reforming the process for examining complaints about the conduct of federally appointed judges. It proposes a more efficient and cost-effective process, with a new funding mechanism allowing for payment of certain key process costs from the CRF. New safeguards to ensure proper financial controls of costs paid from the CRF are also proposed.

Background:

Bill C-9, introduced in December 2021 and currently before the Standing Committee on Justice and Human Rights, proposes amendments to the Judges Act aimed at reforming the judicial conduct process, which applies to the judges of the provincial and territorial superior courts, the federal courts, and the Supreme Court of Canada (SCC). It also applies to the associate judges of the Federal Court and Tax Court of Canada. The same Bill was previously introduced in the Senate in December 2021 as S-3, and in May 2021 as S-5.

The constitutional principle of judicial independence has important implications for the design, and thus inevitably for the cost, of any judicial conduct process. It has been found by the SCC to require that judicial conduct processes be judge-led, and that a judge facing possible removal has a full opportunity to be heard and adduce evidence at a hearing. Lower courts have also found that a judge facing conduct proceedings has a right to paid counsel for the purposes of those proceedings. By necessary implication, a judicial conduct process must operate at arm’s length from the executive and legislative branches of government.

The current judicial conduct process suffers from a number of serious shortcomings, prompting calls for reform from the Chief Justice of Canada in his capacity as Chair of the Canadian Judicial Council (CJC), which administers the process, as well as from the Canadian Superior Courts Judges Association and other legal stakeholders. Key shortcomings include inefficiency and cost due to lengthy procedures, especially regarding review of Council decisions by the courts. The Bill would make comprehensive changes to the process, amounting to the implementation of a substantially new process. The proposed reforms fall into three broad categories, each of which has consequences for process costs.

(1) Overhauling the existing process for making recommendations to the Minister of Justice on whether a judge should be removed from office pursuant to s. 99 of the Constitution Act, 1867: Redesigned procedures would be fairer, faster, and more cost-effective. In particular, a shorter, more efficient appeals process would replace judicial review of CJC decisions through the federal courts, which has helped drive high process costs over the last few years.

(2) Creating new procedural steps for addressing misconduct not serious enough to warrant removal from office: Currently, the Council cannot impose sanctions for any misconduct found to be not serious enough to warrant removal from office unless the judge concerned agrees. The Bill would create fair and cost-effective procedures for imposing sanctions for less serious misconduct without the judge’s consent.

(3) Creating a new funding mechanism for the process with safeguards to ensure sound financial controls: Currently, annual costs vary significantly from year to year due to the constitutional requirement to hold public hearings for complaints that may warrant removal from office. This poses a financial and budgeting challenge because such complaints arise unpredictably, and costs will vary greatly depending on the complexity of the matters at issue. The Bill proposes a funding mechanism to address this variability: a provision allowing for payment of non-discretionary costs associated with public hearings directly from the Consolidated Revenue Fund (CRF). The Bill also proposes measures to ensure financial controls and transparency with respect to all costs paid directly from the CRF, including a review of all such costs and of the adequacy of financial control measures to be conducted every five years, with the results made public.

Day to day process operating costs, i.e. those not associated with public hearings, are relatively low and stable from year to year (less than $500,000 per year) and are paid from funds secured annually via the ordinary budget process by the Commissioner for Federal Judicial Affairs. The Commissioner is ultimately accountable for all process costs. His office provides the CJC with the necessary financial and administrative support to manage the process. Bill C-9 would leave these aspects of the current process unchanged.

Modernization of the Official Languages Act

Background:

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The Bill does not define the expression “precedential value”, leaving to the courts the discretion to do so in internal policies or to apply it as they deem appropriate. This is already the case for decisions “of general public interest or importance” in the current section 20. This expression is not defined and left to the discretion of federal courts. The Bill envisions the same approach with respect to decisions having “precedential value”.

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With regard to Bill 96, there are four distinct court challenges before the Superior Court of Quebec.

These challenges are aimed at a variety of new provisions of the CFL regarding the administration of justice (e.g., the duty of moral persons who wish to file written pleadings in English before a court to join a certified French translation simultaneously, or else the court cannot accept the document). In this regard, in one of the court challenges (Mitchell), the plaintiffs requested and the court agreed to suspend the application of the challenged provisions until the final resolution of this case.

In another court case (English School Board of Quebec), the plaintiffs challenge in particular the constitutional validity of new obligations imposed on school boards by the CFL to use French, or French and English, in a variety of administrative communications, as well as the alleged amendments to the Constitution Act, 1867 which provide that the Quebecers form a nation, that French is the only official language of Quebec and the common language of the Quebec nation.

In another case (Rondeau), the Chief Justice of the Court of Quebec challenges the constitutional validity of a new provision of the CFL which provides that it is prohibited to require the knowledge of a language other than French from a person who would be appointed as a judge, unless the Minister of Justice is of the view that this knowledge is necessary.

As was done for the many court cases challenging Quebec’s Bill 21, the Attorney General of Quebec filed a motion asking that three of the four court cases be merged.

Finally, the AGC is neither a party nor an intervener in any of these court cases, but you said publicly that if the question of the preemptive use of the notwithstanding clause of the Canadian Charter by Quebec made its way to the Supreme Court of Canada, you would ask the authorisation to intervene, whether in the Bill 21 case or the Bill 96 cases.

Bill C-21, An Act to amend certain Acts and to make certain consequential amendments (firearms)

Bill C-21 is a comprehensive legislative package aimed at addressing firearms violence in Canada.

Background:

On May 30, 2022, the Government introduced Bill C-21, An Act to amend certain Acts and to make certain consequential amendments (firearms). The Bill would amend the Criminal Code, the Firearms Act, the Immigration and Refugee Protection Act, and the Nuclear Safety and Control Act.

The measures are designed to protect public safety and address factors that contribute to gun violence. They aim to prevent firearms-related harm, including gender based and intimate partner violence, which is prevalent in our society today.

The Bill includes the following specific proposals:

Bill S-4, An Act to amend the Criminal Code and the Identification of Criminals Act and to make related amendments to other Acts (COVID-19 response and other measures)

Context: Bill S-4 is part of the governmental response to the impact of the COVID-19 pandemic on Canadian criminal courts. It aims to improve the effectiveness of the criminal justice system (CJS) with reforms that would, among other things, clarify and expand remote appearances (by videoconference and audioconference) and expand and update the telewarrant regime. These amendments would benefit the CJS beyond the pandemic as courts manage backlogs and seek greater uses of technology for judicial processes and for virtual proceedings.

Background:

Impact of the COVID-19 pandemic on the Criminal Justice System

The COVID-19 pandemic has had a significant impact on the operation of the criminal courts in Canada, which must simultaneously protect the health and safety of all persons involved, as well as mitigate delays and protect the Charter right of an accused to be tried within a reasonable time. Canada’s criminal courts have been adapting and modernizing to address the challenges they face, but many remain unable to operate at their pre-pandemic capacity. Concerns are growing about case backlogs and the impact of court delays on the application of the Supreme Court of Canada’s R. v. Jordan (2016) decision.

Legislative Reform

Bill S-4, An Act to amend the Criminal Code and the Identification of Criminals Act and to make related amendments to other Acts (COVID-19 response and other measures) was introduced in the Senate on February 8, 2022. It aims to respond to the challenges arising from, or exacerbated by, the pandemic in proposing reforms to support the safe, efficient and effective operation of criminal proceedings, with a view to modernizing the criminal justice system now and for the future. The proposed changes are substantially the same as the ones introduced by former Bill C-23 (2021).

Bill S-4 proposes to amend the Criminal Code to, among other things:

The Bill passed Third Reading in the Senate on June 21, 2022, with two amendments adding two new clauses to the Bill in relation to future reviews of the use of remote proceedings in criminal justice matters. The Standing Senate Committee on Legal and Constitutional Affairs heard from witnesses about concerns regarding the availability of the necessary infrastructure in the North for remote proceedings. Bill S-4 is currently awaiting Second Reading in the House of Commons.

Consultations

Bill S-4 was informed by discussions at meetings of the Federal-Provincial-Territorial (FPT) Ministers Responsible for Justice and Public Safety, as well as input from members of the judiciary through the Action Committee on Court Operations in Response to COVID-19 and other criminal justice system stakeholders.

Fourth Harmonisation Bill (Bill S-11)

The fourth omnibus harmonization bill introduced in the Senate on October 26, 2022, aims to harmonize federal legislation with the private law of the provinces and territories in order for each linguistic version to take into account civil law and common law.

Background:

Bill S-11, the fourth omnibus harmonization, is a result of the harmonisation initiative established by the Department of Justice (DOJ) following the coming into force of the Civil Code of Québec in 1994. In 1995, the DOJ adopted the Policy on Legislative Bijuralism. This policy aims to provide Canadians with access to federal legislative texts that, when dealing with private law issues, reflect, in both official languages, the legal system that applies to them. Since 1998, the DOJ has harmonized federal legislation with the private law of the provinces and territories, in particular with the civil law of Quebec. To date, three omnibus harmonization bills have been adopted (2001, 2004 and 2011).

Harmonization has its basis in Canadian bijuralism. Bijuralism is one of the manifestations of Canadian pluralism and the expression of the coexistence of the civil law and common law in Canada. Subsection 92(13) of the Constitution Act, 1867 gives rise to this co-existence by giving the provinces a broad residuary power over property and civil rights. Federal legislation also grants this power over property and civil rights to the territories.

The fourth harmonization bill would amend 51 statutes that fall under the responsibility of the following nine departments: Agriculture and Agri-Food Canada, National Defence, Finance Canada, Innovation, Science and Economic Development Canada, Justice Canada, Canadian Heritage, Health Canada, Treasury Board Secretariat and Public Services and Procurement Canada.

The Bill would make a number of harmonization amendments to the following four statutes that govern financial institutions: the Bank Act, the Cooperative Credit Associations Act, the Insurance Companies Act and the Trust and Loan Companies Act. It would also harmonize a number of other statutes, including the Access to Information Act, the Canada Evidence Act, the Financial Administration Act, the Canadian Human Rights Act, the Interpretation Act, the Privacy Act and the Official Languages Act. Finally, the Bill contains consequential harmonization amendments to three statutes, which are necessary in order to ensure consistency with the harmonization proposals to the four statutes that govern financial institutions.

The proposed amendments are technical in nature and are non-controversial. The resulting changes are terminological. These changes are not intended to alter the legislative policy underlying the provisions in question. Rather, they ensure that the policy behind these provisions is implemented in light of both the common law and the civil law, in both official languages.

A public consultation was held from February 1st to May 1st, 2017. A consultation document, which included harmonization proposals was posted on the DOJ’s public consultations internet site for the duration of the consultation period. Interested Canadians were invited to comment. In accordance with the established practice, the consultation document was also sent to more than four hundred key stakeholders and members of the legal community, including: provincial and territorial Justice Ministers and their Deputy Ministers; Canadian associations of provincial and superior court judges; Canadian Judicial Council; provincial and territorial law societies; la Chambre des notaires du Québec; the Canadian Bar Association; associations of French language jurists outside Quebec; law professors and experts on civil law and comparative law; interested law practitioners; and, financial institutions sector stakeholders.

Results from the public consultation have shown that the harmonization initiative continues to be favourably received by the legal community stakeholders and has confirmed that stakeholders support the proposed amendments included in the consultation document.

Bill S-11 was introduced in the Senate on October 26, 2022.