October 24, 2018
The Honourable Jody Wilson-Raybould
Minister of Justice and Attorney General
House of Commons
Ottawa ON K1A 0A6
Throughout September the House of Commons Standing Committee on Justice and Human Rights heard weeks of compelling evidence on Bill C-75 presented by highly regarded experts representing all aspects of our criminal justice system.
The Canadian Criminal Justice Association has been following the Committee’s proceedings and the growing discussion within the profession about the elements of the Bill that are likely to produce unintended negative consequences for the criminal justice system. We support much of the commentary that has been made before Committee on how C-75 can be improved.
For example, we agree that:
- the proposed changes to the preliminary inquiry should be abandoned;
- the proposed diversionary approach to administration of justice offences should be extended to include other administration of justice offences;
- the proposal to allow courts to receive routine police evidence in writing should be withdrawn from the Bill given the likelihood that it will add to court delay; and
- the proposals attempting to address the serious problems with judicial interim release should be advanced as only a first step in reducing the high numbers of presumed innocent individuals who are being held in custody awaiting trial.
However, our main reason for writing is to add our voice in emphasizing certain areas of concern in C-75 that have not received as much attention, but nonetheless require modification so that C 75 can achieve its express purposes of addressing delay, improving access to justice, and simplifying and modernizing an overburdened justice system.
The points we would like to emphasize, in particular, include the following:
- The proposed change to the default penalty for summary conviction offences in the context of the hybridization proposals will likely result in increasing sentence lengths and putting more, minor offenders, in jail and for longer terms. We understand the value to the system of hybridization, but with the proposed default penalty, C-75 is not really hybridizing offences (where the prosecutor may elect between proceeding summarily or by indictment), but instead gives the prosecutor the discretion to choose between what is, in effect, an absolute jurisdiction offence versus proceeding with the regular indictable procedure where the accused has the benefit of certain procedural safeguards.
- The proposed power for sentencing judges to exceed the maximum penalty for cases of repeat, intimate partner violence (proposed s. 718.3(8): “… the court may impose a term of imprisonment that is more than the maximum term of imprisonment provided for that offence …”), is a contradiction in terms, will cause great confusion in other sentencing proceedings and completely undermines the meaning of the phrase “maximum penalty” as it is used throughout the Criminal Code. In addition, we are not aware of any evidence that allowing the judge to exceed the maximum penalty will increase any denunciatory that allowing the judge to exceed the maximum penalty will increase any denunciatory or deterrent effect.
- While the proposed re-introduction of a small element of judicial discretion in imposing the victim surcharge is a welcome step in the right direction, the proposed discretion needs to be expanded significantly and the reverse onus removed to enable judges to impose proportionate and just penalties.
- Further, we urge you not only to avoid increasing the use of mandatory minimum penalties, but also to implement evidence-based criminal justice policy by repealing existing mandatory minimum penalties or, at a minimum, providing sentencing judges with the discretion to avoid mandatory penalties in exceptional circumstances.
We respectfully request that you propose amendments to modify these and other problematic parts of Bill C-75. These changes are necessary for C-75 to achieve its potential to address the overriding problems of delay and barriers to access to justice, as well as your stated intention to realize efficiencies, simplification and modernization of our criminal justice system.
We would be happy to expand on our concerns, if that would be of assistance to you.
Canadian Criminal Justice Association
cc. The Right Honourable Justin Trudeau, Prime Minister of Canada
Mr. Arif Virani, Parliamentary Secretary to the Minister of Justice and Attorney General of Canada