The Chair (Mr. Art Hanger (Calgary Northeast, CPC)):
I would like to call the meeting of the Standing Committee on Justice and Human Rights to order.
It is Thursday, May 3, and our orders of the day deal with Bill C-23, An Act to amend the Criminal Code (criminal procedure, language of the accused, sentencing and other amendments).
Again, I will apologize directly to our witnesses for my late appearance, as well as Mr. Comartin's. We were listening to a very riveting story at the national prayer breakfast, and we didn't want to leave before we could get the total gist of it. But I do apologize for making everyone wait.
We have, from the Office of the Commissioner of Official Languages, Mr. Graham Fraser, Commissioner; and Johane Tremblay, director of the legal affairs branch. From the Federation of Associations of French-speaking Jurists of Common Law, we have Louise Aucoin as well as Madame Côté.
Thank you all for being here. We will proceed along the order in which the witnesses are noted on the agenda, beginning with Mr. Fraser.
Mr. Graham Fraser (Commissioner of Official Languages, Office of the Commissioner of Official Languages):
Thank you very much, Mr. Chair.
Ladies and gentlemen of the committee, mesdames et messieurs, thank you for giving me the opportunity to appear today to comment on Bill C-23, and more specifically on the proposed amendments to sections 530 and 530.1, which guarantee the language rights of accused persons.
As stated by the Supreme Court of Canada in Beaulac, the purpose of these provisions is to provide equal access to the courts by accused persons speaking one of the official languages of Canada in order to assist official languages minorities in preserving their cultural identity. For quite some time, the commissioner's office has identified the need to amend these provisions.
To provide some background to my comments, I should point out that Bill C-23 deals with some of the issues that were brought to light in the 1995 study by the then Commissioner of Official Languages, Victor Goldbloom, The Equitable use of English and French Before the Courts in Canada.
I am pleased to see that a number of the provisions of Bill C-23 serve to clarify and improve the language rights provisions of the Criminal Code and must be seen as advancements in that regard.
For example, Bill C-23 clarifies that the justice of the peace or provincial court judge before whom the accused first appears will ensure that the accused is advised of his or her right to a trial in the official language of choice. Currently the accused is informed of this right only if unrepresented by counsel. The extension of this right to all accused represents a positive step forward.
Furthermore, that the purpose of the proposed amendments is to codify existing jurisprudence on language rights in Canada is indeed reflected in a number of the bill's provisions.
For instance, Bill C-23 recognizes the accused's right to receive a translation of the information or indictment against him or her. This is a positive step in the direction set out by the courts. However, under the proposed amendment, the accused would have to make an application for a translation of the information or indictment even if he or she had already chosen the official language to be used at trial.
The information or indictment contains important information required for the accused to respond to the charges. The burden should not fall upon the accused to make an application for translation. He or she should have access to this as promptly as possible without having to make an application.
I recommend that clause 19 of Bill C-23, which adds proposed section 530.01, be modified accordingly.
Another issue that I wish to address today is that of bilingual trials. Under the new subsection 530(6) of the Criminal Code, introduced by subsection 18(2) of Bill C-23, where two or more accused who would otherwise be tried jointly choose to be tried in different official languages, an order that the trial be held in both official languages is warranted. The Criminal Code currently allows for courts to order bilingual trials. However, according to the relevant jurisprudence in this area of the law, for a court to make such an order, it must first be satisfied that the rights of the co-accused and the interests of justice are appropriately balanced. Because this amendment explicitly provides for circumstances in which a bilingual trial is warranted, it is my concern that it would eliminate this important balancing exercise. I therefore recommend that the proposed wording of subsection 530(6) be modified to maintain this element of judicial discretion in ordering a bilingual trial. The holding of a bilingual trial presupposes that the co-accused have a sufficient grasp of both languages to understand the proceedings. This may not always the case.
To conclude, I would like to draw your attention to two issues not specifically addressed by Bill C-23. The first pertains to the fact that the language rights provisions in the Criminal Code are restricted to the trial and preliminary inquiry stages of the criminal process. In the past, my predecessors advocated for the extension of such rights to procedures related to the trial, such as motions, jury selection and bail hearings, as well as the appeal process generally. These are critical stages of the criminal process, and have a significant impact on the outcome of the process as a whole. Without extending language rights to related proceedings, the right of the accused to a trial in his or her official language is not fully achieved. We encourage the government to examine this issue in the near future.
The second, but perhaps most important issue, pertains to the shortage of bilingual judges in provincial superior courts. As you are no doubt aware, the shortage of bilingual judges, that is judges with adequate knowledge of both English and French, constitutes one of the main barriers to access to justice in our two official languages. This problem has been identified by my predecessors since the early 1990s, and by the Department of Justice in a study entitled "Environmental Scan: Access to Justice". It still exists.
The Fédération des associations des juristes d'expression française, the Canadian Bar Association as well as Commissioner Dyane Adam raised the issue before the House Subcommittee on the Process for Appointment of the Judiciary.
In its preliminary report made public in November 2005, the subcommittee recognized the importance of modifying the process in order to remedy the problem. It is important that the superior courts have a sufficient level of institutional bilingualism in order for the accused to benefit from the language guarantees provided for in sections 530 and 530.1 of the Criminal Code. Without this capacity, the language provisions of the Criminal Code have no chance of fulfilling their objective, which is to provide the accused with the right to be tried in the official language of his or her choice.
Thank you for hearing my comments, both positive and constructive, on Bill C-23. I'm very pleased by the positive features of the bill in terms of language rights in the criminal context. However, I would ask that you consider the suggestions I've made in order to improve it, as well as my comments for further advancement in this important area.
I'd be very happy to answer any questions you may have.
Mrs. Louise Aucoin (President, Federation of Associations of French-speaking Jurists of Common Law Inc.):
Good morning to all members of the committee.
My name is Louise Aucoin and I am the President of the Fédération des associations de juristes d'expression française de Common Law, also known as the FAJEF. With me this morning is Diane Côté, the Director of Community and Government Liaison for the Fédération des communautés francophones et acadienne du Canada, the FCFA.
With your permission, I would like to talk to you briefly about the FAJEF. The federation is made up of seven French-speaking jurists associations and its mandate is to promote and defend the language rights of francophones in minority situations, particularly, but not exclusively, with regard to the administration of justice. The FAJEF therefore has a community mandate.
For your information, there are French-speaking jurists associations in British Columbia, Alberta, Saskatchewan, Manitoba, Ontario, New Brunswick and Nova Scotia, and they represent approximately 1,200 French-speaking jurists. The FAJEF is also a member of the FCFA. That is the reason why Ms. Côté is here with me.
My presentation today will deal with Bill C-23, particularly with its proposed language amendments to the Criminal Code.
To begin, the FAJEF is generally pleased with the amendments to the language provisions in Bill C-23. The amendments are positive, particularly the duty to advise the accused of their right to choose the official language used during their criminal court case. That being said, the FAJEF is still concerned by a number of amendments and would like to suggest a few improvements. We have drawn up four specific recommendations.
The first recommendation deals with subsection 530(6). This subsection automatically directs trials to be bilingual—and we insist upon the word "automatic"—when co-accused choose different official languages. Although it is in the interest of justice to occasionally hold bilingual trials, the FAJEF believes that bilingual trials should not become automatic, because they can significantly weaken the accused's language rights.
The FAJEF recommends that there be a very minor amendment to the wording of subsection 530(6), namely the addition of the word "may", at the beginning. Such an amendment to the wording would allow judges to exercise their discretionary authority by either agreeing or not agreeing to a bilingual trial, in light of the specific circumstances of each case.
Our second recommendation concerns subsection 530.01(1) of the bill. This subsection provides that, once the accused has asked to be tried in an official language that is different from that of the information and indictment, the prosecutor has to, at the request of the accused—and this is an issue raised by Mr. Fraser—provide the accused with a written translation of the text. The FAJEF believes that the accused should automatically receive a translated copy of the information and indictment, rather than have to ask for it, especially since the accused would already have indicated the official language to be used during his or her trial. It is the FAJEF's view that the accused should not be required to make several requests for proceedings to be conducted in the official language of his or her choice. A single request should be sufficient.
Our third recommendation deals with paragraph 530.1(c). This paragraph allows the presiding justice or judge to authorize the prosecutor to examine or cross-examine a witness in the official language of the witness, even though it is not that of the accused or that in which the accused can best give testimony.
The FAJEF is of the view that the prosecutor should, as far as possible, use the language of the accused to examine or cross-examine a witness, although at times it may be justified for the prosecutor to examine or cross-examine a witness in a language other than that of the accused. We believe that by adding "where circumstances warrant" to the wording of paragraph 530.1(c), the discretion of the judge or justice would be better delimited so that such a practice would not become automatic.
Finally, our fourth recommendation has to do with section 531. The FAJEF is concerned about section 531 of the bill, and its application in New Brunswick in particular, because this section could lead to trials being moved from one territorial division to another for reasons of language. Given the quite unique language situation in New Brunswick, the only officially bilingual province, criminal trials are suppose to be available in both official languages in all territorial divisions of the province, without requiring the accused to be tried in another division. The FAJEF would like to see the wording of section 531 of Bill C-23 amended accordingly.
So those are FAJEF's four recommendations. However, before closing, I would like to point out that Bill C-23 raises two other concerns that we would like to see dealt with in the near future.
First, since the right to be tried in the official language of one's choosing requires there to be a minimum number of bilingual judges, the process for appointing judges to the federal bench should be changed in order to better reflect that reality. For example, the level of bilingualism of candidates should be evaluated, and the number of bilingual judges needed to ensure equal access to justice in French in Canada should be provided for in every province or region. That's definitely not the way things stand right now.
Second, it is important that language rights at trial also extend, hopefully in the near future, to all of the procedures incidental to a trial and to other forms of inquiry and hearing under the Criminal Code, such as an application for variation in a probation or conditional sentence order, a dangerous offender application, or an application for judicial review.
By way of conclusion, the FAJEF supports the linguistic amendments set out in Bill C-23, subject to the reservations we have expressed.
I would be happy to answer all of your questions. Thank you.
Mr. Réal Ménard:
I intend to move a motion that we devote a few meetings in September to the issue of bilingualism in justice.
What is it that would you like? You know that this committee has questioned Justice Rothstein, whose competence is not in question. However, how can a government appoint a unilingual English-speaking judge to the Supreme Court? You will recall that the government dealt this affront to francophones. I am not questioning the skill and ability of Justice Rothstein. However, it doesn't make sense, and the same thing has just been done with Mr. Sullivan, the ombudsman for victims of crime, who can only speak English. I think we have to send a very clear message, especially to the current government, which is less concerned about bilingualism.
What would you like to see, in terms of gentle legislation coercion, for there to be more bilingual judges?
Perhaps Ms. Aucoin might have some ideas on that.
Mr. Daniel Petit (Charlesbourg—Haute-Saint-Charles, CPC):
Good morning Mr. Fraser. This is the second time that I have met you. The first time was at the Official Languages Committee.
Good morning Ms. Tremblay, Ms. Aucoin and Ms. Côté.
With respect to Bill C-23, I think that it does provide some protection to the accused. I believe that we agree on that. We are often criticized for following an ideology that is only concerned about the victims. In this case, we have given some thought to the accused. My question is to Ms. Aucoin, who is a lawyer.
About two years ago, there was a megatrial in my province. Do you know what a megatrial looks like? Thirty-eight individuals who were involved in drug trafficking, murders, etc., were all charged at the same time. Some were francophones, and others were anglophones. The language of crime is universal. They were all brought before the judge at the Gouin Court House. The lawyers, myself among them, were not stupid. We asked for separate trials. Why? Because time spent waiting for trials means a double credit, so it is something that is often used.
I am wondering if the trials could be split. In this type of situation, an individual does not want to be charged alongside a co-accused who could testify against him, and vice versa. If I understand correctly, language will also become a tool. Therefore, if you have 38 defendants, you could end up with 38 separate trials.
I am talking about a megatrial. You are probably thinking about an ordinary trial with a single defendant. That would not be very difficult. But in almost every province, there are megatrials related to drug charges. That means that a clever lawyer could now use this bill, which protects the rights of the accused, and there would be 38 separate trials. Two grounds would then be available to him.
You are a lawyer working in the area of common law. I would like you to tell me if you think that could ever happen.
Mr. Myron Thompson (Wild Rose, CPC):
I find this discussion to be very interesting. I live in the riding of Wild Rose. I attend a lot of the court sessions in that area in Alberta, mainly because of the work I've done over the years in the justice area.
I'm listening to this discussion, and I'm agreeing with this bill, and I think it's the right thing to do. But I wonder if you would care to comment on an area like mine, where a large majority of the cases require languages other than French or English. We have a huge European settlement--Dutch and German people, many of whom may be involved in this, not to the mention the Asian immigrants.
It seems to me that there's been a tremendous amount of pressure on the courts in my area from time to time to provide a trial of some sort in some language other than French or English. Do you care to comment on that?
Mr. Graham Fraser:
My understanding is that the courts have gone to considerable efforts, along with other institutions in Canadian society, to ensure that translation services are provided for languages other than the official languages.
Basically, my mandate only covers our official languages. The official languages policy has by no means prevented the courts from providing translation services for people who are accused or testify, in the same way as hospitals often have emergency translation services to ensure that someone who comes to the hospital screaming in pain who doesn't speak either French or English can be understood.
I think one of the things that should be understood generally about the non-official languages spoken in Canada is that, by and large, they're transition languages.They're languages that are spoken in the home for a generation.
There was a rule of thumb developed by a political scientist, Michael MacMillan, which I've found very useful, which he calls the third-generation rule of thumb. If a community sustains a language as the language of the home for three generations, they can make a legitimate claim for language rights.
It may have been because of this that one of the commissioners at the Royal Commission on Bilingualism and Biculturalism submitted a dissenting report arguing that Ukrainian should be an official language in Canada. In 1951 there were 450,000 Canadians who spoke Ukrainian at home, but by 1981, that number was down to 45,000.
In contrast, in 1961 there were five million French-speaking Canadians, three million of whom were unilingual, and in 2001 there were seven million French-speaking Canadians, four million of whom were unilingual. This is not a transitional language in Canada; this is an official language. It's a growing language, and increasingly across the country it's becoming a language of welcome to immigrants and refugees. It's an official language to which various language rights have been enshrined in the Charter.
I believe it very much was, Mr. Fraser.
Thank you all for your appearance, Madame Côté, Madame Aucoin, Mr. Fraser, and Ms. Tremblay. Thank you for being here.
That brings our meeting dealing with Bill C-23to a close.
We will suspend for about two to three minutes.
The Chair: I call the Standing Committee on Justice and Human Rights to order.
We have a motion put forward by Monsieur Ménard regarding matters dealing with organized crime, gangs, drugs, etc.
I'll give Mr. Ménard the floor. There are some issues as to how the government can deal with the motion, but I'll let you explain first, Mr. Ménard.
Mr. William Bartlett:
I hope we can be helpful to the committee in dealing with Monsieur Ménard's motion. I appreciate the opportunity to provide the committee with some background on the issues raised by the motion that is before you.
I'll focus my remarks primarily on the first two issues raised in Mr. Ménard's motion.
As you know, Bill C-24 came into force in 2002, and I believe Monsieur Ménard was a member of the committee at that time. In so doing, it modified the definition of criminal organization. Subsection 467.1(1) defines a criminal organization as:
||a group, however organized, that
||(a) is composed of three or more persons in or outside Canada; and
||(b) has as one of its main purposes or main activities the facilitation or commission of one or more serious offences that, if committed, would likely result in the direct or indirect receipt of a material benefit, including a financial benefit, by the group or by any of the persons who constitute the group.
The amendment was made because the previous definition of criminal organization was a more complex and demanding definition. It required, for example, showing a pattern of criminality, which was found to be a difficult issue for crowns to deal with. There had been some development on the international level that I'll refer to a little later, and the new definition was largely based on that international development that led to a definition of criminalization in the transnational organized crime convention.
The concept of material benefit, as it has been interpreted, is quite broad, and sufficiently broad so as to address instances of gratuitous violence, such as drive-by shootings, the issue raised in Monsieur Ménard's motion. This view is confirmed by international legal norms as well as our own jurisprudence. From a criminal policy perspective, it's the inclusion of the requirement that there be a receipt of a material benefit for the offences that the criminal organization is focused on facilitating or committing that is important.
Mr. Chairman, as this committee is no doubt aware, the passage of Bill C-24 was aimed in part with the view to enable Canada to ratify this big international convention, the UN Convention Against Transnational Organized Crime. That convention's definition of an organized criminal group also contains a requirement that the commission of serious crimes be done in order to obtain a financial or other material benefit. We have the definition available if the members of the committee would like to see it.
Similar to the issue before you today, the drafters of the convention struggled with those instances where organized criminals might commit crimes such as murders, which allegedly yield no direct material benefit to the organization. Proposals to broaden the definition to include other illegitimate purposes were suggested as a way to ensure that such acts were captured. However, in the end, the drafters concluded that the concept of material benefit must be construed broadly, and our own courts have confirmed this, and that the motivation for such criminal acts could nonetheless be seen as indirectly linked to the obtaining of a material benefit. The domestic interpretation has solidly confirmed this view.
It should also be noted that the concept of material benefit from a legal policy perspective serves to limit the range of groups that could be seen as criminal organizations but not be within the target of what the criminal organization legislation is designed to capture. For example, the concept of material benefit assists in differentiating organized crime groups from groups who commit crimes for reasons other than a material benefit, such as political reasons.
Mr. Chairman, domestic jurisprudence confirms that the concept of material benefit is broad and that the breadth of this section was deliberate so as to provide law enforcement with the necessary flexibility so as to capture the full range of behaviour engaged in by criminal organizations.
In decisions before the Ontario Superior Court of Justice as well as the Quebec Superior Court, the courts have noted that the term “material benefit” is broad, and that what constitutes a material benefit will depend on the facts of the case.
For example, in Regina v. Leclerc, Quebec Superior Court noted that activity that is intended to provide a gang with an increased presence in a particular territory in order to deal in narcotics would be for the benefit of a criminal organization. This indeed is what lies behind the drive-by shootings and other apparently random acts of apparently gratuitous violence, including those engaged in by street gangs. It creates a climate of intimidation that contributes indirectly to the drug trafficking or other forms of crime that result in the direct material benefit.
In addition, it should be noted that nothing flows directly from the definition of a criminal organization. It is not essential that the crime in issue before the courts be one that is included within the definition of a criminal organization. What is involved in using the definition of criminal organization is that there is an offence before the court....
For example, in section 467.12, there is an additional offence that is applicable if the offence in issue is one committed for the benefit of, in association with, or at the direction of a criminal organization. So you must have the offence and the existence of a criminal organization. The criminal organization exists if it commits or facilitates crime that brings material benefit--this broad concept of material benefit--whether or not it may also sometimes engage in purely random, or apparently purely random, acts of violence.
Having said all this, the issue that Mr. Ménard is raising in this element of the motion, the issue of drive-by shootings, is certainly a serious one. We have been reviewing our criminal laws with a view to ensuring that there are adequate tools within it to address in particular that kind of reckless criminal behaviour.
In regard to warrants for tracking devices such as GPS systems, that is something that we indeed have been looking at. We thank Mr. Ménard for raising that issue in the motion. We are looking for a variety of ways to strengthen our criminal law responses to organized crime. Certainly we are examining the exact issue he has raised in the second part of his motion.
The remaining issues involve primarily funding matters. We really can't comment on those except to note that indeed there is no funding presently available for the activities that the motion raises.
I'll make one comment, perhaps. The idea of a secure website, while certainly a resource-intensive issue, would certainly be feasible in regard to case law, but there are a variety of reasons why it would probably not be possible to put on a website evidence used by the defence and the Crown. That simply wouldn't be available to put on a website, but certainly case law would be available, although making it a secure website would be a fairly resource-intensive exercise.
Those are my comments, Mr. Chairman. I hope they will provide some assistance to the committee in reviewing Mr. Ménard's motion.
Mr. Réal Ménard:
Thank you, Mr. Chairman.
The officials are always welcomed here if they can shed some light on the committee's work. I have no problem with that. I don't know if I can go along with their argument, however, but I do want to be certain that I understand.
I've done my homework as a member of Parliament. I represent a Montreal riding, and the people who work for my police department are worried about fights between street gangs. This is not only happening in Montreal. It is also happening in Toronto, Vancouver and elsewhere.
If you maintain— and I want to see the jurisprudence— that under current legislation, the police...
The Montreal police have told me that they cannot lay charges under section 467.11 against known gang members when they engage in a drive-by shooting. They can lay charges of homicide, possession of illegal weapons, disturbing the peace, but they cannot lay charges if these people are in a car and shoot at someone, not necessarily with the intent to kill, but simply to increase their influence on their territory. The police told me that this type of activity did not meet the definition of "criminal organization".
I also read the Leclerc and Carrier rulings and I don't remember having read that. If you tell me that it is already covered under current legislation, so much the better. Laws are not passed without a purpose. If the problem is solved, I will withdraw that part of my motion and move the adoption of the three other parts. However, the police have told me differently.
I would like you to be very clear with us. Can you confirm that the courts have interpreted the definition of "criminal organization" in a way which would allow the police, be it in Quebec or elsewhere in Canada, to lay charges in a drive-by shooting under the definition of criminal organization? That's what you're telling us this morning. You're saying said that financial and material benefit include an increase in influence over a particular territory. You're saying that you will present to us related jurisprudence.
Moreover, you have the bad habit of never distributing your texts. I would be nice to see them. You have been before the committee two or three times already, and yet you have never distributed your texts. It would be nice to see them.
As the law now stands, can the police lay charges under sections 467.11, 467.12 and 467.13 for drive-by shootings? Yes or no?
Mr. Réal Ménard:
Wait a moment. I want to make sure I understand because this is what worries the police.
My question is quite clear. Of course, the Criminal Code says that it is a major offence for a person to attempt to kill someone in the community with a firearm. However, the police have told us that they would like to be able to lay charges under section 467.11 because that would result in lengthier sentences and delayed parole. I realize full well that the police can lay other types of charges.
Supposing that in Montreal, Toronto or Vancouver, a gang member takes part in a drive-by shooting and the police can link the culprits to a criminal organization by applying the three criteria. In this instance, three persons got together and committed an offence that resulted in the receipt of a material and financial benefit by the group. Will the fact that they committed an offence, in this instance a drive-by shooting, allow the police to lay charges under sections 467.11, 467.12 and 467.13?
I don't want to hear about any other offence, because I know that charges can be laid. I want to know whether, yes or no, it is possible to establish a link between drive-by shootings and criminal organizations? If so, I would like to see you provide us with the appropriate jurisprudence. If it already exists, I am willing to withdraw part (a) of my motion. It is possible that the police were misinformed. If that turns out to be the case, they will be told and they will receive a written response, but I would ask you to be specific and clear.
Mr. William Bartlett:
Not quite. They have to show that the crime was committed for the benefit of a criminal organization. They don't have to show that there was a link in that particular case as long as they can show that the group constitutes a criminal organization and that the crime was committed for the benefit of that criminal organization.
The link is not necessarily through the particular offence in front of the court. It could be shown, through other evidence, that the group engages in drug trafficking, for example. If it can be shown that they engage in drug trafficking, extortion, prostitution, or whatever offences they may specialize in, or the range of offences they may be involved in, you would be able to prove that the criminal organization exists. And if you can show that the offence was committed for the benefit of the criminal organization...and that does have to be shown. You don't necessarily have to trace that particular offence back to show what benefit that offence may have garnered for that criminal organization; you simply have to show that it was done at the instance of the criminal organization or in association with them.
So once the issue of the existence of the criminal organization is shown, and you can then show that the people committing the drive-by shooting were doing so in association with them, that would be sufficient for the charge.
Mr. Derek Lee:
Well, I think we've had sufficient discussion of item (a).
Can we go to item (b)? I'll just say, as an aside, that as much as Monsieur Ménard is well intentioned—and we all are here—this particular mechanism of moving a substantive motion, a relatively complex policy motion, to the committee has the effect of circumventing the House's private members' business procedures. I appreciate that it's well intentioned, but I really have second thoughts about whether it is in order.
In any event, let's continue with the substance. I'm going to ask this question. In item (b), if there are warrants for electronic surveillance, why would GPS electronic monitoring not fall within that envelope? Why does there have to be a special case made for GPS system monitoring? I would have thought that GPS system monitoring would fall easily within the rubric of electronic monitoring or electronic surveillance.
Could you comment on that, Mr. Bartlett or Mr. Taylor?