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, as enacted (Bill C-75 in the 42^nd Parliament)

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Annex A: Statistics and Research

Public Opinion Research

Justice Canada periodically commissions national surveys to understand Canadians’ perceptions, understanding, and priorities on justice-related issues through its National Justice Survey (NJS). For the 2016 and 2017 iterations, the focus was on providing supporting information for the ongoing criminal justice system review, including the perceptions of values for and expectations of the criminal justice system.^{Footnote 108},^{Footnote 109} Below findings from both surveys are presented.

Many respondents believed that dealing with criminal behaviour outside of the courts could have a positive impact on the criminal justice system, even in some cases where crimes are more serious.^{Footnote 110}

• 69% of those surveyed believe that diversion could make the criminal justice system more effective (e.g., holding people to account in an appropriate way; 18% said it would not);
• 79% of respondents believe that diversion could make the criminal justice system more efficient (e.g., reduce the caseload of courts and court processing time; 11% said it would not);
• Over forty percent (42%) of respondents thought diversion should be the preferred response for anyone accused of non-violent crime, unless specific elements of the case warrant more restrictive measures. A further 30% thought diversion should be used only for first time accused of non-violent crime. Just over one in 10 (13%) reported that diversion should be the preferred response for all accused; and,
• When presented with scenarios that depicted sexual assault involving a minor, recklessly discharging a firearm, selling opioids while carrying a concealed weapon, more than half (53% to 68%) of respondents would have preferred that the offenders had been diverted out of the court system to be held accountable for the crime in alternative ways (e.g., community service, mediation, referrals to specialized rehabilitative programs and/or victim-offender reconciliation programs) rather than staying in the system to be prosecuted. Of those who chose prosecution, most preferred a community-based resolution as opposed to incarceration.

Respondents strongly supported discretion in sentencing and saw the importance of considering personal circumstances, the circumstances of the offence, as well as family situations when determining sentences.^{Footnote 111}

• The overwhelming majority of respondents support judicial discretion in sentencing. Only 4% of respondents thought that judges should have no discretion in sentencing. However, more respondents supported a structured approach to discretion (71%) than full discretion (24%);
• In focus groups, respondents talked about the importance of considering seriousness of the crime, intent to harm, whether remorse was shown or responsibility was taken, previous history of offending, offender background and circumstances, and circumstances of the crime;
• More than two in three (69%) respondents said judges should give strong consideration^{Footnote 112} to whether an offender has mental illness or cognitive functioning problems in determining a sentence and seven in ten (71%) said that that it is very important that the criminal justice system consider the circumstances of vulnerable or marginalized persons.

Respondents supported the use of least restrictive measures, the use of community-based responses and reducing incarceration. Many felt that community-based responses could have a positive impact on the criminal justice system and crime reduction.^{Footnote 113}

• Over half of respondents (55%) agreed that too many people were incarcerated in Canada (17% disagreed and 18% neither agreed nor disagreed);
• 69% of respondents agreed that an offender should only be incarcerated if probation, community sentences, fines/other less restrictive measures are not appropriate;
• 63% agreed that incarceration should only be used for those committing serious crimes;
• The majority of respondents (90%) were at least moderately supportive of community-based sentences for offenders found guilty of non-violent crimes;
• When presented with three scenarios depicting various offences including sexual assault against a minor, discharging a firearm with recklessness, trafficking in opioids while in possession of a weapon, most (77%-86%)^{Footnote 114} believed that offenders should have been held accountable through community-based responses (including diversion), rather than jail/prison (10% -17%);
• Almost three quarters (73%) of respondents believed that a greater focus on community-based responses would reduce crime, only 10% believe that it would have a limited impact;
• Six in ten (61%) thought that community-based responses would result in lower levels of reoffending (15% said it would not); and,
• Two thirds of respondents (66%) thought that community-based responses to crime would result in greater efficiency in the justice system (13% said it would not), and 59% of respondents indicated that community-based responses would increase their trust and confidence in the criminal justice system (18% said it would not).

Many respondents believed that greater use of community-based alternatives could help reduce overrepresentation of Indigenous offenders and those with mental health issues and cognitive functioning problems.^{Footnote 115}

• One-in-two respondents believed that greater use of community-based alternatives to prosecution would reduce the overrepresentation of those with mental health or cognitive functioning disabilities (50%), and would reduce the overrepresentation of Indigenous persons (55%); and,
• Three-in-four (75%) respondents agreed that there should be an increase in the number of accused remaining in the community.

Those surveyed acknowledge that there is a problem with how breaches of conditions and failure to comply with orders (e.g., administration of justice offences (AOJOs)) are handled in the criminal justice system. Many felt that although there should be a response when conditions are not met, a criminal charge for failing to meet conditions is not the preferred response. Respondents were concerned about conditions that could put up barriers to accused/offenders ability to function in their communities, and highlighted the need to have supports in place for conditions that are imposed.^{Footnote 116}

• Focus group participants acknowledged that there are challenges to those released on bail, probation, or parole on meeting the conditions set out in their release. A criminal charge for breach of conditions seemed unreasonable to many participants, particularly for an action that is not in itself a criminal offence (such as a curfew violation or arriving late to a court proceeding). However, it was acknowledged that there needs to be consequences for violating of conditions which could include warnings, review by a panel, assigning community service, changing conditions, etc.;
• Most focus group participants were particularly concerned about conditions that erect further barriers for offenders, and hamper rather than help them integrate into society. These included, for example, curfews for those who may find employment involving shift work or restrictions on computer access for those seeking employment;
• Most focus group participants expected that conditions set out in a release should be linked to some form of support, which could include, treatment for those with addiction issues who are ordered to not consume alcohol, or transit passes to those without transportation or employment and expected to attend parole meetings or court dates. Without support to meet conditions, the courts are “setting you up to fail”;
• Over two-in-three (68%) agreed that breaches that do not involve a criminal act should be dealt with outside of the criminal justice system; and,
• 75% of respondents thought that response by criminal justice system professionals to persons failing to respect conditions should be determined based on taking individual circumstances into account (19% thought all should receive the same response). The three most important circumstances were: 1) whether the breach was due to practical issues or unforeseen issues such as work schedules, lack of transportation, unavoidable delays or unexpected situations that arose (81%), 2) whether the accused/offender intentionally breached the condition (i.e., did not respect their order(79%), and 3) whether addictions, mental health problems or cognitive functioning issues affected the accused/offender’s ability to comply with the order (79%).

Bail

Despite limited national data on bail, some key findings and trends have been reported in a recent Justice Canada publication on bail:^{Footnote 117}

• Data from the Ontario Court of Justice showed that the proportion of criminal cases that began in bail court rose from 39% in 2001 to 46% in 2017;^{Footnote 118}
• A study conducted in eight Ontario courts from 2006 to 2008 showed that a significant number of bail decisions were routinely adjourned; on an average day bail decisions were delayed for between 57% and 81% of cases;^{Footnote 119}
• Similar results were found by another study conducted in five jurisdictions in 2013, where on average each day, about 54% of all cases observed were adjourned. This proportion varied by jurisdiction;^{Footnote 120}
• A more recent study (2017) found that in 497 appearances in six Canadian courts, 48% of bail hearings were adjourned;^{Footnote 121}
• A study based on court data collected from April to June 2011 showed that approximately half of cases in bail courts were subject to a release order (Quebec, 57%; Ontario, 51%; British Columbia, 47%); as well, the study showed that sureties were routinely required in Nova Scotia (81%), Ontario (69%) and Quebec (60%), while rarely being required in Alberta and British Columbia;^{Footnote 122}
• A study conducted in Southern Ontario bail courts found that almost all releases on bail (98%) involved conditions; on average, 6.2 conditions were imposed on accused released; the most common were residence requirement or weapons restrictions (77% each), no contact orders (75%) and abstaining from certain areas (60%);^{Footnote 123}
• Similarly an observation study of bail appearances in six Canadian courts found that 99% of accused released on bail were given conditions, with 92% having multiple conditions; on average 5 conditions were imposed;^{Footnote 124} and,
• A study conducted in five courts in four Canadian jurisdictions found that only 18% of accused released on bail violated the terms of their release. When it was violated, 98% were breaches of conditions or failure to attend court.^{Footnote 125}

Intimate Partner Violence

Recent data show the prevalence of intimate partner violence in Canada and highlights that the overwhelming majority of victims are women:^{Footnote 126}

• Between 2005/2006 and 2010/2011, intimate partner violence accounted for about six in ten (57%) completed adult criminal court cases resulting from violent criminal incidents reported by police;
• In 2017, almost 96,000 people in Canada were victims of intimate partner violence, representing close to one-third (30%) of victims of police-reported violent crime. Four out of five victims of police-reported intimate partner violence were women (79%) - representing 75,399 female victims;
• Victimization by an intimate partner was the most common form of police-reported violent crime committed against females (45% of female victims of crime, compared to 14% of male victims); and,
• In 2017, violence within dating relationships was more common than violence within spousal relationships, according to police reported data. A current or former dating partner was the perpetrator against 55% of intimate partner violence victims, compared to a current or former legally married or common-law spouse (43% of victims);
• The type of violence most often experienced by police-reported intimate partner violence victims was physical force, such as pushing, hitting or choking (72%);
• In 2016, the rate of police-reported intimate partner sexual assaults was 11% higher than in 2015 and 25% higher than in 2011. The rate of intimate partner sexual assault in 2016 was 40 times higher among women than men;
• Of the 933 intimate partner homicides between 2007 and 2017, most were committed by a current or former legally married or common-law spouse (75%). Women continued to be at a higher risk of intimate partner homicide, with a rate almost four times higher than that of men in 2015. Females aged 25 to 29 years were at the highest risk of intimate partner homicide; and,
• Based on findings from the 2014 General Social Survey on Victimization, Indigenous women (10%)^{Footnote 127} were about three times as likely to report being a victim of spousal violence as non-Indigenous women (3%).

Youth Criminal Justice Act (YCJA)

The YCJA, which came into force in 2003, has reduced the over-use of the formal court system and of custody for youth (65% reduction in youth custody). The YCJA contemplates alternatives to charging for less serious offences (such as AOJOs), including requiring police officers to consider using non-charge options or “extrajudicial measures” before deciding to charge a young person. The Act aims to reduce over-reliance on custody by reserving custodial sentences primarily for violent and serious repeat offenders. The YCJA also emphasizes the importance of timely intervention with youth, given that youths’ perception of time is different than adults’ and that the ability of a young person to appreciate the connection between offending behaviour and its consequences weakens the longer the proceedings take to complete.

Despite the YCJA’s clear direction, cases in which an AOJO is the most serious offence are disproportionately dealt with through police charging, prosecution and custody sentences. AOJOs contribute to the overrepresentation of vulnerable young people, particularly Indigenous youth, in the youth justice system. The aim of the YCJA amendments is to strengthen aspects of the current YCJA so that AOJOs occur less frequently, will most often be dealt with through extrajudicial measures or by a judicial review process, and will be less likely to result in custody.

Participants at the March 2017 Justice Canada National Roundtable on Over-representation of Indigenous Youth emphasized that AOJOs needed to be addressed on a priority basis, suggesting that: too many conditions are imposed on youth and are often unrelated to the young person’s offending behaviour; youth need to be better supported to comply with conditions; non-charge options, such as extrajudicial measures or sentence reviews, would be more appropriate responses to breaches of conditions in most cases; and, the law should further limit discretion to impose custody in relation to AOJOs. Some participants questioned the social utility of having a breach offence and expressed support for non-criminalization of breaches.

The YCJA amendments also eliminate unnecessary burdens on courts and other inefficiencies by repealing YCJA provisions relating to mandatory hearings and lifting of the publication ban on youth who commit violent offences and obligations on the Crown when not seeking an adult sentence.

Preliminary Inquiries

Recent publications^{Footnote 128},^{Footnote 129},^{Footnote 130} have reported that:

• In 2014/2015, there were 9,179 completed adult criminal court cases (provincial and superior court cases) that had at least one charge with a preliminary inquiry requested and/or held;
• The majority (81%) of these cases were completed in less than 30 months; and,
• The number of preliminary inquiries scheduled and/or held for the most serious offence in adult and youth criminal court cases, has decreased 37% since 2005/2006.

In April 2017, Justice Canada undertook an electronic survey on preliminary inquiries and collected information from 1,969 Crown prosecutors, judges, police, defense counsel, legal aid counsel and victim stakeholders.^{Footnote 131} Key results include:

• Respondents “somewhat agree” or “agree” that the preliminary inquiry:
  • Serves the rights of the accused (84%);
  • Fulfils its functions (71%) and its purpose (68%);
  • Serves the needs and values of the criminal justice system (57%);
  • Is necessary (51%); and,
  • Serves the needs of victims (39%).
• Eligible respondents indicated that they “agree” or “somewhat agree” with the following challenges:
  • Negatively impact vulnerable witnesses, who are required to testify twice (69%);
  • Contributes to delays (65%);
  • Is used as a “fishing expedition” (64%);
  • Is of limited utility due to the Justice’s limited jurisdiction (58%);
  • Requires disproportionate time and resources for the value-added (57%); and,
  • Is difficult for the judiciary to effectively control and manage (41%).
• Results indicate the continued polarization in relation to preliminary inquiry reform as illustrated by the divided proportions of respondents who believed the following reforms option would bring “some improvement” vs. “significant improvement” to the current regime:
  • Restrict preliminary inquiries to “serious offences” (49%);
  • Codify out-of-court examination mechanism (judge not present but available to rule (45%));
  • Restrict preliminary inquiries to case where certain factors warrant holding one (e.g., drug offences, volume of evidence, complex fraud cases, etc.) (40%);
  • Preliminary inquiry only on consent of the Crown and Defence (42%); and,
  • Restrict preliminary inquiries to offences carrying a maximum penalty of 14 years + (33%).

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