THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Wednesday, May 29, 2019
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred 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, met this day at 4:15 p.m. to give clause-by-clause consideration to the bill.
Senator Serge Joyal (Chair) in the chair.
[English]
The Chair: Honourable senators, welcome this afternoon. We are resuming consideration, on a clause-by-clause basis, of Bill C-75. I will ask you to try to remember the moment we left our consideration of the bill last time, which is almost two weeks ago. I hope you have turned your memory to the right channel. We left at proposed section 294, page 123.
Since the committee is in session, may I ask those who are not members to withdraw, please? I noticed that from 294 to 300 there are no amendments, so shall clauses 294 to 300 carry?
Hon. Senators: Agreed.
The Chair: Agreed.
Then, on clause 301, I think there is an amendment from Senator Sinclair. I think, Senator Sinclair, if I may help you, it’s consequential amendment to your main amendment that was adopted earlier. I will give the honourable senators the pages we were dealing with at page 301. They are pages 126 and 127. If you want to take your bill at pages 126 and 127, I will then invite Senator Sinclair to introduce the amendment.
Senator Sinclair: I’ll read the amendment first and then I’ll give the explanation. So I would move:
That Bill C-75 be amended in clause 301,
(a) on pages 126, by replacing lines 1 to 36 with the following:
“301 Section 737 of the Act is replaced by the following:
737(1) An offender who is convicted, or discharged under section 730, of an offence under this Act, the Controlled Drugs and Substances Act or the Cannabis Act shall pay a victim surcharge for each offence, in addition to any other punishment imposed by the offender.
(2) Subject to subsections (2.1) and (3), the amount of the victim surcharge in respect of an offence is
(a) 30% of any fine that is imposed on the offender for the offence; or
(b) if no fine is imposed on the offender for the offence,
(i) $100 in the case of an offence punishable by summary conviction, and
(ii) $200 in the case of an offence punishable by indictment.
(2.1) Despite subsection (1), the court may, on application of the offender or on its own motion, order an offender to pay no victim surcharge, or to pay a reduced amount, if it is satisfied that the victim surcharge
(a) would cause undo hardship to the offender; or
(b) would not cause undue hardship to the offender but would be disproportionate to the gravity of the offence or the degree of responsibility of the offender.
(2.2) For the purposes of subsection (2.1), undue hardship means the offender is unable to pay a victim surcharge on account of the offender’s precarious financial circumstances, including because of their unemployment, homelessness, lack of assets or significant financial obligations towards their dependants.
(2.3) For greater certainty, for the purposes of subsection (2.2), the imprisonment of the offender alone does not constitute undue hardship.
(2.4) When the court makes an order under subsection (2.1), the court shall state its reasons in the record of the proceedings.
(3) The court may order an offender to pay a victim surcharge in an amount exceeding that set out in subsection (2) if the court considers it appropriate in the circumstances and is satisfied that the offender is able to pay the higher amount;
(4) The victim surcharge imposed in respect of an offence is payable within the time established by the lieutenant governor in council of the province in which the surcharge is imposed. If no time has been so established, the surcharge is payable within a reasonable time after its imposition.
(5) A victim surcharge shall be applied for the purposes of providing such assistance to victims of offences as the lieutenant governor in council of the province in which the surcharge is imposed may direct from time to time.
(6) The court shall cause to be given to the offender a written notice setting out
(a) the amount of the victim surcharge;
(b) the manner in which the victim surcharge is to be paid;
(c) the time by which the victim surcharge must be paid; and
(d) the procedure for applying for a change in any terms referred to in paragraphs (b) and (c) in accordance with section 734.3.
(7) Subsections 734(3) to (7) and sections 734.3, 734.5, 734.7, 734.8 and 736 apply, with any modifications that the circumstances require, in respect of a victim surcharge imposed under this section and, in particular,
(a) a reference in any of those provisions to “fine”, other than in subsection 734.8(5), must be read as if it were a reference to “victim surcharge”; and
(b) the notice provided under subsection (6) is deemed to be an order made under section 734.1.
(8) Subsections (2.1) to (2.4) apply to any offender who is sentenced for an offence under this Act, the Controlled Drugs and Substances Act or the Cannabis Act that was committed after the day on which those subsections come into force.”; and
(b) on page 127, by deleting lines 1 to 18.
Would you like me to read it over to you again if you didn’t follow?
The Chair: No, but you could read it in French if you want to.
Would you like to explain your amendment, senator?
Senator Sinclair: This change is necessitated because of a court decision. In Boudreault, the Supreme Court of Canada invalidated the entire victim surcharge regime under section 737, so this motion would amend clause 301 to reenact the victim surcharge regime that Boudreault struck down, but in a revised manner to respond to Boudreault, it would require courts to impose a surcharge for each offence under subsection 737(1) but would provide greater discretion under subsection 737(2.1) to not impose a surcharge or to reduce the amount if the court is satisfied that imposing the surcharge would (a) cause undue hardship or (b) would not cause undue hardship but would be disproportionate to the gravity of the offence and the degree of the responsibility of the offender.
The new regime would maintain the definition of undue hardship proposed in Bill C-75, renumbered as subsection 737(2.2) and it would also maintain, in subsection 737(2.4), that the court must provide reasons for exercising its discretion to waive or reduce the surcharge.
New subsection 737(7) would clarify that the enforcement provisions apply to the new regime and new subsection 737(8) would specify that the regime would apply to any offender who commits an offence after the coming into force of the proposed amendments.
Clause 301 would be further amended to reenact the rest of the victim surcharge regime that was not included in Bill C-75 as introduced. This would include existing subsections 737(2) to (4) of the Criminal Code, which set out the quantum for the surcharge and the time frame for paying it. And subsections 737(7) to (9), renumbered as subsections 737(5) to (7), which relate to how funds obtained through the surcharge are to be allocated, how information to the offender is to be provided and enforcement reformulated to work with the new regime.
The Chair: Any questions or comments?
Senator Batters: Because of that Boudreault decision coming out, then, is this amendment being brought by the government to make sure that Bill C-75 would be applicable and be in proper compliance with that? Is that correct?
Senator Sinclair: This is a government-approved amendment that came out directly as a result of the Supreme Court decision in consultation with them. They drafted the amendment itself.
Senator Batters: The government did.
Senator Sinclair: I’m presenting it on behalf of government.
Senator Batters: Would we be able to have whichever Justice Canada officials are appropriate to answer about this?
The Chair: I would like to call Matthias Villetorte, Senior Counsel and Team Lead. If you could repeat the question, Senator Batters?
Senator Batters: Senator Sinclair was explaining to me that this is a government-approved amendment in order to deal with the Boudreault decision to make sure that is being complied with. I wonder, after listening to Senator Sinclair explain it, do you have any other information on behalf of the Government of Canada to help us understand that and explain anything further?
Matthias Villetorte, Senior Counsel and Team Lead, Department of Justice Canada: No, I think Senator Sinclair explained it quite well. It addresses the decision of the Supreme Court in Boudreault by reinstating the whole regime, which was struck down, but allowing judicial discretion to ensure the imposition of a victim surcharge does not represent undue hardship, as we saw. But also, where there is a stacking effect of different victim surcharges, that the end result is still compliant with the fundamental principle of sentencing, which is that the sentencing is proportionate to the gravity of the offence and the culpability of the offender.
Senator Batters: Was there any discussion or any other options that were considered as part of the response to Boudreault, being as the having surcharge has been something that has been favorably looked upon by provincial justice ministers for quite some time, and I wonder if there were any other options considered or if this was this the only way that the Government of Canada wanted to proceed?
Mr. Villetorte: As far as the Government of Canada is concerned, the legislative re-enactment of the victim surcharge was necessary in order to allow the imposition of victim surcharges. We have been in discussion with our provincial and territorial counterparts on this, to look at how to respond. It’s quite clear from the Supreme Court of Canada what needed to be done in legislation. We’ve been in discussion with them following the decision with respect to this.
Senator Batters: Are the provincial governments in agreement with this particular type of amendment?
Mr. Villetorte: We weren’t allowed to necessarily talk about the specifics of it as presented here. It is obviously cabinet confidence so we were not allowed to share, but in addressing and discussing the Supreme Court of Canada decision, we were able to discuss generally the amendments and —
Senator Batters: What about once the bill was filed and introduced in Parliament?
Mr. Villetorte: Yes, as it was. As the bill was introduced before we had the decision of the Supreme Court, which was rendered in December, it was a discussion that maybe more judicial discretion needed to be given in response to the decision by the Supreme Court in Boudreault.
Senator Batters: On this specific amendment, have provincial governments been consulted about it? Yes or no?
Mr. Villetorte: We spoke about the decision and the impact of the Boudreault decision and with respect to what was proposed in Bill C-75, as introduced. We spoke about it and there was general support that we needed to address situations where the stacking of victim surcharges would be more than just for, as originally introduced, administration of justice offences.
Senator Batters: Thank you.
The Chair: Any other interventions?
Senator Sinclair: Maybe with the assistance of Justice officials, I can confirm that as a result of this amendment being inserted, we have to revisit or take a look at clause 401(4), which is a consequential amendment as a result of adopting this amendment. Because this amendment does now include the Cannabis Act as part of the victim surcharge regime and the provision that was in the Cannabis Act to bring the cannabis victim surcharge regime into the provision, which was affected by Boudreault as well, was incorporated into this. Am I correct?
Mr. Villetorte: That’s correct.
The Chair: Will you have another amendment to introduce at clause 401?
Senator Sinclair: Make a note of it for now. I don’t know if the document is here yet.
The Chair: Are there any other comments or questions in relation to the amendment as introduced by the Honourable Senator Sinclair?
No other interventions. Then shall the motion in amendment carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: Agreed? On division? Recorded vote.
[Translation]
Keli Hogan, Clerk of the Committee: Honourable Senator Joyal, P.C.?
Senator Joyal: Abstain.
Ms. Hogan: Honourable Senator Batters?
Senator Batters: No.
Ms. Hogan: Honourable Senator Carignan, P.C.?
Senator Carignan: No.
Ms. Hogan: Honourable Senator Dalphond?
Senator Dalphond: Yes.
Ms. Hogan: Honourable Senator Dupuis?
Senator Dupuis: Yes.
Ms. Hogan: Honourable Senator Dyck?
Senator Dyck: Yes.
Ms. Hogan: Honourable Senator Gold?
Senator Gold: Yes.
Ms. Hogan: Honourable Senator Lankin, P.C.?
Senator Lankin: Yes.
Ms. Hogan: Honourable Senator McIntyre?
Senator McIntyre: Abstain.
Ms. Hogan: Honourable Senator MacDonald?
Senator MacDonald: No.
Ms. Hogan: Honourable Senator Pratte?
Senator Pratte: Yes.
Ms. Hogan: Honourable Senator Sinclair?
Senator Sinclair: Yes.
Ms. Hogan: Yeas:7; nays: 3; abstentions: 2.
[English]
The Chair: The amendment carried.
Shall clause 301, as amended, carry?
Some Hon. Senators: Agreed.
Senator Batters: On division.
The Chair: On division.
Shall clauses 302 to 306 carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: On clause 307, I have Senator Batters with an amendment. I will identify the amendment for everybody to have the proper one in hand. It’s identified on the upper right by the code CPC-307.128.
[Translation]
It is CPC-307.128. That is the amendment in question.
We will suspend the meeting for a few minutes to check whether we can hear the sound in both languages. We’ll wait for the technician to arrive.
(The committee suspended.)
(The committee resumed.)
[English]
The Chair: Honourable senators, the meeting is called back.
Senator Sinclair, could you make sure — I know you’re trying to learn the code by heart, but — both of us were trained at the bar exams to learn the code by heart, as you know.
Senator Batters: I move:
That Bill C-75 be amended in clause 307, on page 128, by replacing lines 26 to 29 with the following:
“guilty of an indictable offence and liable to imprisonment for a term of not more than ten years.”
And I also bring to the attention of the committee and the chair that I just noticed that the word “indictable” has been spelled wrong in that draft amendment so if we can make that correct.
The Chair: I made the correction as a typographical mistake.
Senator Batters: Thank you. I appreciate that.
What’s being proposed in Bill C-75, which is part of the current bill, is to hybridize the breach of long-term supervision order. And on this particular one I am proposing an amendment that would return it to an indictable offence, because it’s my view that one of the most serious offences that’s being reclassified in Bill C-75 includes breaches of long-term supervision orders.
Long-term supervision orders apply to the most dangerous sexual predators in our society, individuals who are so dangerous that after they complete their sentence they are subject to long-term supervision orders for up to 10 years with many stringent conditions imposed by the Parole Board of Canada.
John Muise, a former parole board member and a police officer with the Toronto Police Force for 30 years, and he is currently a volunteer director of public safety with Abuse Hurts, spoke about this offence before the House of Commons Justice Committee, and he said:
Clearly, the legal bar to receive this designation is high, and with good reason. These are very serious sex offences, and serious offenders who pose an ongoing risk to innocence even while out on these LTSO orders, so when these kinds of offenders appear before a court for an LTSO breach—usually an early warning of a return to their serious offence cycle—they must be dealt with appropriately.
So in the view of the organization Abuse Hurts, breach of long-term supervision should remain an indictable offence to protect public safety and Canadians.
And similarly, at our committee at the Senate Legal Affairs Committee, we heard from Karen Wiebe, the Executive Director of the Manitoba Organization for Victims Assistance, and she also recommended that the serious offence remain indictable only. So for the sake of public safety and Canada, that’s why I’m bringing this particular amendment, to keep this offence as indictable only.
And for the information of those on the committee and who might be watching this particular proceeding, examples of the breach of long-term supervision orders include attending rehabilitation treatments, avoiding children, alcohol and illegal substances that could trigger violent behaviours, not to communicate with individuals that an offender knows to be involved in criminal activity, not to own a smartphone capable of accessing the Internet, not to own or carry a weapon, or conditions that sometimes consist of a ban not to go to an entire city or region without written permission from a parole officer in order to protect a particular victim and his or her family.
For those reasons, I move this particular amendment and I ask for the support of my colleagues. Thank you.
The Chair: Thank you, honourable senators.
Senator Pate: Thank you very much. I want to correct on the record the — it was actually the dangerous offender provisions that were brought in to deal with serious sexual offences with the repeal of the habitual offender provisions with the inception of the Charter.
The long-term supervision orders are more for individuals with mental health issues. In fact, the majority of folks who are subject to long-term supervision orders are folks with mental health issues who the court is looking to have additional supervision beyond the minimum sanction that is often two years that’s imposed. I wanted to ensure that we’re clear on where — and they are certainly being administered more than was initially intended, if you look at Hansard, as to what the legislative intent of those provisions was. I wanted to be sure that was on the record.
The Chair: Thank you. Any other comments in relation to the amendment as introduced by Senator Batters?
Senator Gold: I spent some time as a commissioner on the Parole Board of Canada, and I wanted to underline the tremendous variety of circumstances that people experience or suffer under that fall within this category. So I think hybridization is quite appropriate.
There are times when it’s wilful and intentional and I think it would be appropriate to proceed with the highest sentence, but there are many circumstances where it’s more of a sad case than a criminal case. That has been my limited experience on the Parole Board.
Senator Pate: Intellectual disabilities as well.
The Chair: I’m sorry, Senator Pate?
Senator Pate: What Senator Gold is referring to is there are many people with intellectual disabilities who are also captured in this category.
Senator Sinclair: Senator Gold made the comment I was going to make. That’s fine.
The Chair: Seeing no other senators, I will call the vote. Yes, Senator Batters?
Senator Batters: I’m looking at the website of the Government of Canada. When Public Safety Canada are describing long-term offender designation, it was created in 1997, primarily targeting sex offenders. This legislation was developed in response to concerns that many sexual and violent offenders required specific attention, even though they did not meet the criteria for a dangerous offender designation. It says that the LTO designation is given to individuals convicted of a “serious personal injury offence” who, on the evidence, are likely to reoffend.
Offenders who can be managed through a regular sentence, along with a specific period of federal supervision in the community, can be designated an LTO that can result in a term of supervision of up to 10 years after an offender is released.
The Chair: Thank you for putting that on the record.
Seeing no other senator requesting intervention, I will call the vote on Senator Batters’ amendment.
Shall the amendment as introduced by Senator Batters carry?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
Senator Batters: Recorded vote.
[Translation]
Ms. Hogan: Honourable Senator Joyal, P.C.?
Senator Joyal: Abstain.
Ms. Hogan: Honourable Senator Batters?
Senator Batters: Yes.
Ms. Hogan: Honourable Senator Carignan, P.C.?
Senator Carignan: Yes.
Ms. Hogan: Honourable Senator Dalphond?
Senator Dalphond: No.
Ms. Hogan: Honourable Senator Dupuis?
Senator Dupuis: No.
Ms. Hogan: Honourable Senator Dyck?
Senator Dyck: No.
Ms. Hogan: Honourable Senator Gold?
Senator Gold: No.
Ms. Hogan: Honourable Senator Lankin?
Senator Lankin: No.
Ms. Hogan: Honourable Senator McIntyre?
Senator McIntyre: Yes.
Ms. Hogan: Honourable Senator MacDonald?
Senator MacDonald: Yes.
Ms. Hogan: Honourable Senator Pratte?
Senator Pratte: No.
Ms. Hogan: Honourable Senator Sinclair?
Senator Sinclair: No.
Ms. Hogan: Yeas: 4; nays: 7; abstention: 1.
[English]
The Chair: So we come back, then, to clause 307. Shall clause 307 carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: Shall clauses 308 to 313 carry.
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: On clause 314, I have an amendment from Senator Sinclair.
I will identify the code of the amendment so everyone has the right page. It’s MS-314.134.
Senator Sinclair, if you want to introduce the amendment to page 134 of the bill.
Senator Sinclair: You will be pleased to know that the reading will not take as long as the last one. I move:
That Bill C-75 be amended in clause 314, on page 134, by replacing lines 14 and 15 with the following:
“section 259 or 261, subsection 730(1) or 737 (2.1) or (3) or section 738, 739, 742.1 or 742.3,”.
This motion is also the result of the amendment we just made to 301 to create a new victim surcharge regime under section 737 of the code. The effect of the amendment would be to ensure that an order made to waive the victim surcharge or to reduce or increase its amount would be captured under the definition of a sentence under section 785 of the Criminal Code.
The motion will also amend clause 314 by replacing cross references to subsection 737, et cetera — the various numbers I read out already, in paragraph (b) of the definition of sentence.
The Chair: Any questions to Senator Sinclair? Senator Batters?
Senator Batters: Is this one, again, a government amendment?
Senator Sinclair: A Boudreault amendment.
The Chair: Shall the amendment as introduced by Senator Sinclair carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: Shall clause 314, as amended, carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: Shall clauses 315 to 385 carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: For clause 386, there is an amendment, I think, from Senator Carignan. It’s the amendment identified on the top corner of your page as FL-317.135.
I will make sure that everyone has the page.
[Translation]
Senator Carignan: No. There was CC-386.182.
[English]
The Chair: Just a minute. It was an amendment that we didn’t have here. That’s why I called for a vote on that slot of amendments. So I will ask for the authorization of the committee to revert to clause 317.
Hon. Senators: Agreed.
The Chair: I didn’t have the copy of the amendment before, so I will request the —
[Translation]
Senator Dupuis: We passed clauses 315 and 316.
The Chair: Clauses 315 to 385, because I had not mentioned that there was an amendment to clause 317.
Senator Dupuis: Fine.
The Chair: I would ask for the committee’s consent to go back to clause 317.
[English]
We have that agreement, senators. So we’re on section 317.135 at page 135 of the bill.
You’re next, Senator Lankin.
Senator Lankin: Yes. That’s the FL.
I move:
That Bill C-75 be amended in clause 317.1, on page 135, by replacing line 25 with the following:
“(c) the agent is authorized to do so under
(i) the law of the province; or
(ii) a program”.
This deals with the scope of agents to represent individuals in criminal court cases. We heard much about hybridization, which moves summary convictions where the role of agent was often employed to maximum sentences beyond six months. In that case, other provisions within the Criminal Code prohibit agents to represent people in that situation.
We heard a number of organizations come forward. I will give you excerpts from a couple of them which I think explain them better than I could.
Sheena Weir, Executive Director, External Communications, Law Society of Ontario summarized the issue as follows:
In Ontario, licensed paralegals, licensing candidates and law students are all considered agents under the code. However, section 802.1 of the Criminal Code restricts agents representing individual defendants from appearing in criminal court if the defendant is liable to imprisonment for a term of more than six months.
Bill C-75 increases the default maximum penalty for all summary conviction offences to two years less a day of imprisonment. When these increased maximum sentences are read in conjunction with section 802.1 of the code, the effect is that regulated agents will lose the ability to appear before courts on summary conviction offences except to request adjournments. The effect on defendants and on the efficient and effective functioning of the justice system will be material and, in our view, negative.
I also have a quote from the Law Society of Canada, from Morgan Cooper, Vice President of the Federation of Law Societies of Canada. I won’t read it. If people have questions and want more information, I’m delighted to do so.
There are a few important points to make. First, this bill is, in part, about efficiency and in response to court backlogs and looking for giving courts flexibilities to proceed in ways appropriate to the case before them. It is the view of many of the witnesses who came before us that this provision runs counter to that process of efficiency. There are many cases where it is a summary offence being proceeded upon, which are more minor in nature — for example, where agents represent the individuals. In the hybridized cases, that will no longer be able to be accomplished.
The second thing is to realize the role of “agent” and who they represent. People who meet the threshold for legal aid do get representation, depending on availability of legal aid supports in various provincial and territorial jurisdictions. People who can afford a lawyer get representation, but there is what we heard referred to as a gap population and there are many people within this gap population become vulnerable in these situations.
It was suggested by officials that there was a possibility that agents could represent in the preliminary stages but not at trial. However, in many cases, individual defendants are not going to want to have a change part of the way through in terms of their representation. Again, it’s a failure of access to appropriate representation.
The minister, I think, was very clear in his genuine intent to work with provinces and territories to find solutions to this. Of course, the provision in the bill that we’re talking about amending allows, after consultation with the province, that a program can be approved or the criteria established by the lieutenant governor in council of that province.
We seek to change that to the language I read out which an agent is authorized if they do so under the law of the province or a program.
The reason for that change is important. Agents are not solely paralegals, as in the case in Ontario. That’s a unique but important situation in Ontario, but law students are captured under this. There is much good, important work that is done by law students in our country.
The regulators — in this case, the law societies — have a responsibility and a scope of responsibility that they exercise, which is to establish the programs and the criteria. The provisions in this bill would provide that discretion, role, exercise of scope of duty and scope of responsibilities reverting to the province, and that’s a significant issue of concern.
This amendment is to address that situation, and to ensure that there will still have to be a process in the province. Either a law will create the category of agents or will enable, as is the case in most provinces currently, a delegation of that authority to the professional body, which is the law society, the regulator.
That’s what we seek to ensure will continue in the future under the hybridization.
Senator Batters: I support this amendment. Thank you, Senator Lankin, for bringing it. I think it’s a needed fix to Bill C-75, which, on this particular point, seems to have been a government oversight not to cover this particular situation. I recall being a young articling student, being covered under exactly this sort of agent category and doing these types of criminal cases in the provincial courts in Saskatchewan.
I would ask the Justice representatives to perhaps come to the table and explain why this isn’t being included. I’d like to know what their position is on this particular amendment.
The Chair: I will invite Shannon Davis-Ermuth.
Did you hear the question from Senator Batters?
Shannon Davis-Ermuth, Senior Counsel, Department of Justice Canada: I missed the tail end of it.
Senator Batters: My view is that this particular amendment is needed to cover a gap in this bill that could impede the working of the criminal justice system in this respect. I’m wondering what the Government of Canada’s response is as to why this isn’t covered under the current bill and whether they support this amendment.
Ms. Davis-Ermuth: I’m not able to speak to the government’s position on this particular amendment, but I can give the history why section 802.1 was enacted in the 2002. It was to provide some limits on subsections 801(2) and 802(2) of the code, which provide that defendants may be represented by counsel or agents, the limit being that agents can only appear on summary conviction offences, with a penalty of six months’ imprisonment or less.
Section 802.1 was enacted in part because of concerns, particularly from the judiciary, that anyone could appear as an agent for a summary conviction offence, irrespective of penalty. These were noted by the Ontario Court of Appeal in Romanowicz in 1999 by the Law Society of Upper Canada and former Supreme Court of Canada Justice Peter Cory on behalf of the Ontario government.
The government recognizes the important role that agents play in courts for access to justice. The intent of the bill was not to restrict current practices. However, with Bill C-75’s proposal to hybridize 188 currently straight indictable offences that will have a maximum penalty of two years less a day on summary conviction, this does increase the number of offences that can proceed summarily.
A limit on who can represent an accused is something that is best considered by the provinces. The federal government does not intend to change current practices or interfere with the jurisdiction of provinces and territories to regulate legal professionals.
As my colleague, Ms. Morency, testified at the Justice Committee in the other place, when an amendment to section 802.1 was adopted to allow the provinces and territories to establish criteria and an order-in-council — the amendment that is now in clause 317.1 — and to allow any agent to appear to request adjournments — this approach was previously endorsed by federal-provincial-territorial ministers in 2008 as a response to calls from Ontario for greater control over the quality of representation by agents following a proliferation of agents in Ontario courts in the 1990s and a crisis in legal aid funding.
At the time, the federal-provincial government consensus was that allowing the criteria to be established by the executive arm of the government would be the most efficient way to address this issue. This is something that we understand can be done fairly quickly, and their legislature does not have to be in session at the time. Right now, the reclassification amendments and the amendment to the agents provision would come into effect 90 days after Royal Assent.
If the amendment as proposed to allow authorization by the law of the province, it’s possible that there are current laws of the province that might immediately, once being referred by the Criminal Code, have the effect of allowing agents to act in certain cases. There are already rules and regulations in different provinces and territories that speak to what kind of representation different categories of legal professionals, including paralegals, law students and articling students, can perform. So there is a possibility that if it now says they can act on summary conviction matters, currently relying on the limitation in the code, once this provision referred to it, it’s possible that it could be interpreted, but the limitation would no longer apply.
The provinces and territories would be in the best place to assess the rules, regulations and laws within their own jurisdictions, but the department does have some concerns that there might be some unintended consequences of referring to laws that might already exist.
As well, it might take longer for the agent situation to be addressed through the laws of the province, if it requires legislative action from the provinces and territories.
[Translation]
Senator Dalphond: I take note of what Ms. Davis-Ermuth said, but in my consultations, both with bar associations and legal clinics, I was told that obtaining an order from the lieutenant governor in council could be a challenge, particularly in Ontario under the new provincial government. They would prefer an amendment that would mean this element could be found in the legislation.
Currently, they have the authority to intervene under provisions of the act that allow the Law Society of Ontario to authorize articling students and legal clinics to provide legal services under the supervision of a lawyer who is a member of the Ontario Bar. Personally, I would be inclined to support the amendment. I met with representatives of legal clinics, who also stressed the importance of adding subparagraph (i) pursuant to the act. Accordingly, I support Senator Lankin’s amendment.
[English]
Senator McIntyre: I note Ms. Davis-Ermuth’s remarks. This is an amendment that I’m definitely going to support. I vividly recall appearing in court for some accused that had no legal representation under the wing of the Dalhousie Legal Aid Clinic. At that time I was a third-year law student at Dalhousie University — and so was Senator Pate but not the same year — and it was an honour and privilege to appear in court on behalf of those people. I vividly recall that. That was a great experience and it was then that I decided to become a criminal law trial lawyer. So I support your amendment.
Senator Sinclair: Just for clarification, senator, I want to be clear that what I understand is really your amendment does a very simple thing and it adds the phrase “the law of a province.” That’s really all the change is because it refers to programs that are approved or criteria established by the lieutenant governor in council of the province. Those last two sentences after line 25 are not changed, so it really only adds the phrase the law of the province before a program, if I’m reading you correctly. It’s a relatively simple straightforward change, and so I just want you to know that I noted the concern of the department but this is an amendment that I can support as well, I endorse that.
The Chair: You are fortunate that the department does not vote at the table.
Thank you, senator. I have Senator Lankin and Senator Dupuis.
Senator Lankin: I’ll pass.
[Translation]
Senator Dupuis: I am not going to claim that senators are closer to the field than people in the Department of Justice, but I think that having worked in what was then called a legal clinic — not only as a student, but as a lawyer in my case — it is important to preserve this possibility. I am therefore fully prepared to support this amendment.
[English]
The Chair: I will call the vote on the amendment as introduced by Senator Lankin. Shall the amendment introduced by Senator Lankin to clause 317.1 carry?
Some Hon. Senators: Agreed.
[Translation]
Senator Dupuis: We request a recorded vote.
The Chair: Will you please proceed with the roll call, Madam Clerk?
Ms. Hogan: Honourable Senator Joyal, P.C.?
Senator Joyal: Yes.
Ms. Hogan: Honourable Senator Batters?
Senator Batters: Yes.
Ms. Hogan: Honourable Senator Carignan, P.C.?
Senator Carignan: Yes.
Ms. Hogan: Honourable Senator Dalphond?
Senator Dalphond: Yes.
Ms. Hogan: Honourable Senator Dupuis?
Senator Dupuis: Yes.
Ms. Hogan: Honourable Senator Dyck?
Senator Dyck: Yes.
Ms. Hogan: Honourable Senator Gold?
Senator Gold: Yes.
Ms. Hogan: Honourable Senator Lankin, P.C.?
Senator Lankin: Yes.
Ms. Hogan: Honourable Senator McIntyre?
Senator McIntyre: Yes.
Ms. Hogan: Honourable Senator MacDonald?
Senator MacDonald: Yes.
Ms. Hogan: Honourable Senator Pratte?
Senator Pratte: Yes.
Ms. Hogan: Honourable Senator Sinclair?
Senator Sinclair: Yes.
[English]
Ms. Hogan: Yeas, 12; nays, zero; abstentions, zero.
The Chair: Shall clause 317, as amended, carry?
Some Hon. Senators: Agreed.
Senator Batters: On division.
The Chair: Agreed, on division.
Honourable senators, the bells will be ringing in a short time and the time to reach the Senate Chamber, of course, might be a long way, so I will suspend and invite you to come back. There are only three more amendments to be dealt with and I think we would be able to reach a conclusion to that if you are diligent to run fast to be back here after the vote, so the meeting is suspended.
(The committee suspended.)
(The committee resumed.)
[Translation]
The Chair: Honourable senators, I will invite you to refer to the bill on page 182. We are at clause 386, and there is an amendment identified by number CC-386.182
[English]
We are on an amendment identified by the number CC-386.182.
[Translation]
This amendment is being introduced by the Honourable Senator Carignan. Do you want to move your amendment?
Senator Carignan: Yes, Mr. Chair.
I move that Bill C-75 be amended, in clause 386, on page 182:
(a) by replacing line 11 with the following:
“ 5This Act comes into force on the”; and
(b) by deleting lines 18 and 19.
By way of clarification, this is the part that concerns clause 386 of the bill, which brings into force part of the Act to amend the Criminal Code (exploitation and trafficking in persons). This is the famous bill we called the Mourani bill. Bill C-75 brings sections 1, 2 and 4 into force, but means that section 3 of the Act to amend the Criminal Code (exploitation and trafficking in persons) does not come into force at the same time as this bill. The coming into force of section 3 is reserved for a date to be set by order-in-council.
The objective is to remove the passage that states that section 3 of the Act to amend the Criminal Code (exploitation and trafficking in persons) will come into force on a date to be fixed by order-in-council.
Section 3 would therefore come into force at the same time as the other three sections with the passage of Bill C-75. In section 3 of the bill on exploitation and trafficking in persons.... It is section 279.05, which deals with offences that occur at the same time as trafficking in persons, which states the following: “A sentence imposed on a person for an offence under sections 279.01 to 279.03 shall be served consecutively to any other punishment imposed on the person for an offence arising out of the same event or series of events and to any other sentence to which the person is subject at the time the sentence is imposed on the person for an offence under any of those sections.”
We are therefore talking about the principle of consecutive sentences, which occur when an offence of trafficking in persons and another offence are committed simultaneously.
The purpose is not to give the governor in council the discretion to determine the timing of the coming into force, so that it can be done immediately at the same time as Bill C-75. Is that clear enough? We’ll see with the questions.
The Chair: I remember the exchange we had on this issue with the witnesses very well.
Senator Dalphond: Did the witnesses tell us about a difficulty with cumulative sentences? For these same types of offences, there were also minimum sentences. The cumulative effect of minimum and consecutive sentences made us wonder whether the bill was constitutional within the meaning of section 12 of the Charter of Rights and Freedoms. As a result, the Governor General has requested that the review of the file be concluded before this part of the act comes into force. I don’t know if my memory is correct or not.
Senator Carignan: It has always been the government’s choice to delay implementation. When the bill on exploitation and trafficking in persons was passed, I think the majority of cabinet members voted against it because they felt there was an issue with its constitutionality. The issue seems to have been resolved, because it is now agreed to implement sections 1, 2 and 4. In my opinion, it is unlikely that there will be a problem with regard to section 3. As for any bill, it is clear that one day, an accused who will be given consecutive sentences will be able to invoke the Charter, and the courts will decide at that time.
Senator Dupuis: Can we ask the officials of the Department of Justice to come forward to the table? We would like some clarification.
The Chair: Ms. Carole Morency, Director General and Senior General Counsel, Criminal Law Policy Section.
[English]
Did you hear the question?
Carole Morency, Director General and Senior General Counsel, Department of Justice Canada: The question is just to explain —
[Translation]
Senator Dupuis: Excuse me, please. I just want to avoid your having to interpret a question that has not yet been asked. I will try to be very clear.
In Bill C-75, in clause 386, why did the government choose to bring into force three clauses of the bill in question, but not clause 3? Subsection 5(2) states that section 3 will come into force on a date to be set by order of the governor in council. Second, what is the impact of the amendment, which proposes that the entire act come into force as soon as the bill receives royal assent?
[English]
Ms. Morency: First, I would remind the committee that the minister did address this issue specifically in the response to the committee on his undertaking and it’s addressed at pages 3 and 4 in the English version. And it explains why there is the concern about the constitutionality. When one looks at the mandatory consecutive sentencing for these offences, combined with mandatory minimum penalties for other offences that are often charged in the same cases — and that would be the sex trade work offences that involve mandatory minimum penalties — the concern is that when the two come together in a case, with a mandatory consecutive sentence on top of significant minimum mandatory penalties, there is a significant Charter risk. And it is for that reason that the government has not proposed to bring into force that part of Bill C-452.
Senators will recall Bill C-452 was adopted by the previous Parliament and was supported by previous parliamentarians, but it had not been brought into force before the last general election. So the issue at the time, and as I had testified as well previously before this committee, is that when the prostitution-related amendments in what was previously Bill C-36 went forward, they went forward in one track and proposed mandatory minimum penalties, either new or higher. And that was enacted fairly quickly. The committee may recall that had a timeline with the Supreme Court of Canada in the Bedford decision.
Bill C-452 was on a different track, private members’ business, was introduced, died, came back and moved along and supported by Parliament. But the cumulative impact of those two sets of amendments were not considered in the previous Parliament. Thus, when asked to bring it into force now, in the current Parliament, that’s the concern that has been articulated and set out in the minister’s letter to the committee.
In terms of what is the impact, Bill C-75 is proposing to bring everything else into force right away, but not that provision. That provision for the mandatory consecutive sentence would remain not in force. The government has already indicated — and the minister indicated and it’s in his undertaking — that there is this broader review of sentencing under way that would also address mandatory minimum penalties. And pending the conclusion of that review, this could clarify that.
I would like to bring attention to the fact that if, for the sake of argument, this mandatory consecutive provision was not brought into force at this time, what is the impact for sentencing courts? Sentencing courts can look at the facts and circumstances of every case before it and depending on which offences are charged or not, the court may still have an option of having sentences served consecutively because that’s still permitted as a discretionary item in the Criminal Code. It would not be mandatory. It would leave to the discretion of the court to ensure the offence is crafted to meet the circumstances before the court in that case, but it would not be mandatory.
The Chair: Are there any other questions?
Senator Lankin: I appreciate the clarity with which you put that forward. I know that you touched on this, but I want to understand clearly that this consecutive sentencing provision of human trafficking was enacted by the previous Parliament but not brought into force. Is that correct? And you mentioned the Bedford decision, which is where I want more clarity. Why did the previous government delay on bringing this into force?
Ms. Morency: I don’t have the actual dates in front of me, but my recollection is that with the prostitution-related offences and amendments in response to Bedford, there was a one-year timeline for the Supreme Court decision, so that came forward on a fairly expedited basis. Bill C-452, private member’s business often takes longer and, as part of the bill, the provisions would come into force upon order of Governor-in-Council. That was part of the bill.
My recollection is that Bill C-452 was passed by Parliament, received Royal Assent in the late days of June in the Parliament of 2015, and there wasn’t time to bring it into force. Then the question is, bringing it into force on top of and considering it cumulatively with Bill C-36 prostitution-related amendments, what is the cumulative impact?
Again, I would remind the committee, in addition to the undertaking response by the minister, the Charter statement tabled by the Minister of Justice with respect to Bill C-75 does refer to this because these amendments were originally proposed as part of Bill C-38 which is now merged in here, so it is also addressed in that document.
Senator Lankin: Thank you.
Senator Batters: Just a point on this particular part because I remember a little bit of this. I was the sponsor of Bill C-36 the government bill, and I think it was in 2014 that everything was passed. Yes, there was that one-year time frame, but then Bill C-452, as Ms. Morency indicated, was passed much later because it was a private member’s bill. But it was passed while the Conservative government was in place and all that was left to do was have the order-in-council to have it take effect. That was not done, obviously, because it was right at the end of the parliamentary session and then the government changed.
I recall Senator Boisvenu quite a few times asking the Senate government leader when this was going to be put into effect and that has been a constant question that he has had for the last three and a half years.
The Chair: Thank you.
[Translation]
Senator Carignan: You said that the judge’s discretion still applies and that, in some decisions, he or she may decide to impose sentences that must be served consecutively. Based on your argument, however, is it not a sign that Parliament does not want consecutive sentences to be imposed that Parliament and the governor in council refuse to bring this section into force? Could a judge conclude, by exercising this discretion, that the government does not wish to impose consecutive sentences in such a situation, which would have the opposite effect to that desired?
[English]
Ms. Morency: I think the effect of what is being proposed in Bill C-75 is to tell sentencing courts to look to and apply the sentencing principles and purposes of sentencing. This means to craft a sentence that is appropriate in all of the circumstances and recognizes the fundamental purpose of sentencing including the totality and proportionality principles of sentencing, to craft a sentence that is appropriate in all of the circumstances, rather than to direct and require a sentencing court to, irrespective of all of those, impose a sentence.
The proposal is to say to sentencing courts: Follow the sentencing principles. If at the conclusion of the government’s review on the sentencing there is a different way of trying to address these concerns, it would still be open at a future date to look at how to deal with this, whether through this particular provision or not.
My point was just to suggest to the committee that in the interim while the review is pending, there are rules and principles in place to assist courts to ensure that the sentence they impose in these cases is fit, just and proportionate in all the circumstances of the case.
The Chair: Any other comments?
[Translation]
Senator Dupuis: Senator Carignan, do I understand that your amendment comes from the fact that Bill C-452 should have been implemented, but was not? You have the benefit of the experience of recent years, it makes you regret not having implemented it and you bring it back —
Senator Carignan: I don’t know what you are talking about. Royal assent...
Senator Dupuis: What we’ve just heard...I’ll just finish my sentence.
Senator Carignan: Royal assent was given in June 2015.
Senator Dupuis: Let me finish my question, please.
Senator Carignan: You’re imputing motives to me.
Senator Dupuis: We just heard from the Department of Justice that Bill C-452 was passed, but not implemented. Senator Batters added that Senator Boisvenu had made several interventions to try to convince the government to implement the same principle that is part of your amendment today. I wonder, and I ask you, if you are tabling this amendment today because you realize — I don’t know, it’s a question I’m asking — that, indeed, this principle should have been put into effect when the bill was passed in 2015?
Senator Carignan: Look, the bill was passed in June 2015, just before the House adjourned for the summer. At that time, it was understood that the governor in council had the authority to bring this section into force.
Senator Dupuis: Yes, yes.
Senator Carignan: There were elections, as you know, in the fall of 2015. The governor in council has never indicated its intention to bring this section into force, despite repeated requests. Bill C-75 was introduced almost two years ago in the House of Commons. We are finally getting to the stage where we can implement it. So two years ago, the government’s intention was to continue to study section 3. I say that if they have not had time to conclude this study in almost four years, it may be time to send the message that we want this provision, adopted by Parliament in 2015, to come into force. Otherwise, there is a risk that the courts, when sentencing, will do the opposite of what the witness told us, believing that Parliament does not want to impose consecutive sentences for these types of offences. If the government wanted to do it, it could have, but it never did.
Senator Dupuis: So do I understand that the answer to my question is yes? Thank you.
Senator Carignan: You may conclude...
[English]
Senator Lankin: My question is to Senator Carignan or Senator Batters, whichever of you might be able to help me. I’m inclined to support this, but I’m trying to understand one aspect of it. I’m not asking this question because of the change in government or the political party in government.
This bill, when it came forward as a private member’s bill — it was passed, it had approval of government — could have been written, I believe, to have come into force upon Royal Assent. It wasn’t, it was upon order-in-council. I’m wondering if you recall the reason for that and the reason I’m asking that is whether or not there was concern around Charter implications at that point in time and if those concerns are still valid today irrespective of whether something should have been done over the last four years or not?
Senator Batters: I don’t have a significant memory of that particular part of it. However, I don’t recall any concerns being raised about a slight delay of coming into force. There are many bills that come into force, as you know from sitting around the cabinet table, many bills that come into force upon Royal Assent. But there are many others, for one reason or another, where there is a certain delay. Sometimes it’s a set delay of one year if certain things have to come into effect. Other times, the government wants to make sure everything is in place to be able to properly implement that bill.
I don’t recall any concerns about that being raised whatsoever. I’m sure it was something that was done at the end of June or very close to the end of June, when the sitting was just about concluded and I don’t recall any concern being raised about that whatsoever.
Senator Lankin: All the more reason to have it come into effect on Royal Assent.
Ms. Morency, do you recall from that period of time any concern that was raised that would have led the government of the day — even though it was a private member’s bill; Parliament, let me say — to prefer a coming into force upon order-in-council as opposed to upon Royal Assent?
Ms. Morency: I don’t recall, but that is how it was enacted, with that as a coming into force approach.
Senator Lankin: Thank you.
Senator Batters: Of course, it was also a private member’s bill which does not have the drafting expertise. So it could have been just a matter of that. It was a Bloc MP, I believe, that brought it in or she was Bloc and maybe she —
Senator Carignan: She was Bloc and she changed to independent.
Senator Batters: Or independent, right. So didn’t obviously have the resources then, being an independent MP, that someone with a government caucus would potentially have access to.
Senator Gold: I’m not comfortable with the amendment for the simple reason that it’s one thing when the government decides to proceed with something and they have an opinion that says it may be a Charter risk but we’re willing to take it, we believe it’s Constitutional, and we’ve lived that in bills around this table. And then reasonable people can disagree as to whether we should proceed, and we have had differences of opinion around this table on that.
But when the government says we are really worried that this might constitute cruel and unusual punishment in the criminal setting, I am prepared to defer to that decision, especially when they underline that they’re going to do a more fulsome review of the whole question of sentencing and minimum sentences in particular. So I can’t support the amendment for that reason. I think it would be irresponsible for us to ignore the testimony we heard.
The Chair: Any other intervention before I call the vote on the amendment of Senator Carignan?
Senator Sinclair: I concur with Senator Gold. I think we need to be concerned about the implications of an amendment that was, according to witnesses that we heard, going to put this particular provision in conflict with the Charter. That’s one opinion. Others, of course, would beg to differ, I’m sure.
But when the government is going to undertake a review of the whole question of sentencing and, in particular, the issue of minimum sentencing because this implicates the minimum sentencing provisions of some of the references that are here, I think we need to be concerned about whether we’re taking away the timeline that the government would need to do that review.
This is unique in the sense that it does reference the fact that we have in each of these bills that are referenced here, in the legislation that they amended, we have minimum sentences that are by implication now going to become consecutive minimum sentences and what that is going do. I think it’s a valid concern that the government has raised and is trying to meet by leaving it open to bringing it into force by order-in-council, so I’d suggest that we defeat the amendment.
The Chair: Having no more senators on my list, we’ll then call the vote. All those in favour of the amendment as introduced by Senator Carignan, please raise your hand?
All those opposed?
Those who abstain?
An Hon. Senator: Roll call.
The Chair: All those in favour of the amendment of Senator Carignan please raise your hand.
Do you want a recorded vote? Certainly.
Madam Clerk, will you proceed with the call?
[Translation]
Ms. Hogan: Honourable Senator Joyal, P.C.?
Senator Joyal: Abstain.
Ms. Hogan: Honourable Senator Batters?
Senator Batters: For.
Ms. Hogan: Honourable Senator Carignan, P.C.?
Senator Carignan: For.
Ms. Hogan: Honourable Senator Dalphond?
Senator Dalphond: Against.
Ms. Hogan: Honourable Senator Dupuis?
Senator Dupuis: Against.
Ms. Hogan: Honourable Senator Dyck?
Senator Dyck: Against.
Ms. Hogan: Honourable Senator Gold?
Senator Gold: Against.
Ms. Hogan: Honourable Senator Lankin.
Senator Lankin: For.
Ms. Hogan: Honourable Senator McIntyre?
Senator McIntyre: For.
Ms. Hogan: Honourable Senator MacDonald?
Senator MacDonald: For.
Ms. Hogan: Honourable Senator Pratte?
Senator Pratte: Against.
Ms. Hogan: Honourable Senator Sinclair?
Senator Sinclair: Against.
Ms. Hogan: Yeas: 5; nays: 6; abstention: 1.
[English]
The Chair: So the amendment does not carry.
I will come back to clause 386. Shall clause 386 carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: On division.
Shall clause 387 carry? Agreed? On division?
Some Hon. Senators: On division.
The Chair: On clause 388, I am informed that Senator Dalphond has an amendment.
Would you introduce the amendment, please. You can proceed, Senator Dalphond.
[Translation]
Senator Dalphond: I move that Bill C-75 be amended in clause 388, on page 183, by replacing lines 6 and 7 with the following:
“ 388 (1) Paragraph 2(1)(a) of the Identification of Criminals Act is amended by striking out “or” at the end of subparagraph (i), by adding “or” at the end of subparagraph (ii) and by adding the following after subparagraph (ii):
(iii) an offence punishable on summary conviction if that offence may also be prosecuted as an indictable offence described in subparagraph (i);
(2) Paragraph 2(1)(c) of the Act is replaced by the following: ”.
[English]
The Chair: Do I understand that this amendment is also supported by Senator McIntyre?
Senator McIntyre: Yes.
The Chair: Yes. Thank you. Because I think there was consultation between the two of you to come to a conclusion.
[Translation]
Senator Dalphond: This is an amendment relating to the taking of fingerprints, which applies the same logic as with regard to the taking of DNA following the hybridization of offences which, until then, could only be prosecuted by indictment.
This amendment is proposed by Senator McIntyre and I, and both amendments are intended to prevent unintended consequences of hybridization in terms of fingerprinting. DNA and fingerprints are, as several witnesses — including representatives of the Canadian Association of Chiefs of Police, and police — have reminded us, essential tools for identifying criminals.
In addition, as in the case of DNA sampling, it is important to avoid having the police or the Crown choose to prosecute an offender by indictment — whereas a summary offence prosecution would be sufficient for the sole purpose of obtaining a DNA sample or fingerprints; choosing the indictment would be a perverse effect of the amendment, which is intended to simplify the prosecuting an offender.
[English]
Colleagues, I am proposing this amendment because it goes along with the amendment proposed by Senator McIntyre, and which I have the same concerning DNA. And, as I mentioned previously, I’m concerned with the fact that the reclassification and judicial referral hearings will have unintended consequences on the DNA databank and fingerprinting, making those two extremely important tools less effective in assisting police officers to enforce the law.
Maybe for background I should mention that the Identification of Criminals Act provides that fingerprints may be taken from a person who is in lawful custody, charged with or convicted of an indictable offence.
This article places two conditions on the police. First, the information must be sworn before fingerprints are taken and, second, charges must proceed by indictment. This is section 2 of the Identification of Criminals Act.
The proposed amendment will add that, for those offences that will be hybrid after the adoption of Bill C-75, fingerprinting will continue to be done.
Senator Sinclair: Just a technical point I want to draw to the attention of both senators who worked on this and that is the reference to paragraph 2(2)(1)(a). I think the brackets around the 2 are unnecessary because the numbers system in the Identification of Criminals Act does not have a bracket. I think we need to remove the brackets around the number 2.
Just a minor issue.
The Chair: I think that point could be clarified if you will authorize the Law Clerk and Parliamentary Counsel to make the technical, numerical and typographical changes and adjustments to the amendment to ensure all that is taken care of.
Senator Dalphond: I agree. Part of the toiletage, to use the expression you defined before, in paragraph 1 there is no bracket and in paragraph 2 of the proposal there is no bracket, but in the first one there are brackets. So I agree there is a mistake in the fine-tuning.
The Chair: We’ll take care of that when we ensure that the proper adjustments are made according to the previous paragraph.
Senator Sinclair: As a comment, I would endorse — as well.
[Translation]
Senator Carignan: Can we bring back the department representatives?
The Chair: Yes, of course.
[English]
Welcome back. There is a question for Ms. Davis-Ermuth.
[Translation]
Senator Carignan: Can you explain why the government did not see fit to correct the law to include the issue of fingerprints, so that they would be admissible even in cases of summary conviction? Is there a reason?
[English]
Ms. Davis-Ermuth: Not that I’m aware of.
[Translation]
Senator Carignan: Isn’t there a reason? Did they miss it, or what?
[English]
Ms. Davis-Ermuth: It’s a matter of interpretation of the Identification of Criminals Act. The Identification of Criminals Act allows for the taking of fingerprints or photographs for indictable offences and the Interpretation Act interprets that to mean hybrid offences as well. In some jurisdictions that’s interpreted to include even once an election to proceed summarily is done; in others it does not. It was a matter of interpretation.
[Translation]
Senator Carignan: In your opinion, is this amendment not necessary, or would it clarify the issue so that we have more certainty?
[English]
Ms. Davis-Ermuth: It’s there for greater clarity. It would also serve to assist in the jurisdictions where there is an interpretation that once the Crown elects to proceed summarily, it’s no longer possible to take fingerprints or photographs There is some dispute and lack of clarity so it does serve the clarity purpose.
This amendment would be consistent with the objectives of Bill C-75 in that it would allow for fingerprints and photographs to be taken for the 118 newly hybridized offences, regardless of how the Crown proceeds.
Senator Dalphond: My understanding was that there was controversy in the case law between provinces about how this provision should be read. I think that’s what you referred to.
Ms. Davis-Ermuth: Yes.
Senator Dalphond: My intent is to make it clear there is no longer a controversy.
Ms. Davis-Ermuth: The department agrees that would clear up the controversy.
The Chair: Any questions? All those in favour —
Ms. Davis-Ermuth: Sorry, I have a comment.
It won’t affect the vote, but I wanted to mention that the committee may wish to consider a consequential amendment if this motion is adopted in terms of the coming into force of the two separate clauses. Right now, this amendment is a single clause. If it is split into two clauses, one part of the amendment would relate to the bail amendments, which come into force 180 days after Royal Assent and this one would relate to the reclassification amendments, which come into force 90 days after.
The Chair: I would need an amendment for that because we cannot authorize the chair to adopt a consequential amendment on your behalf. I would be willing to do it — it’s not because I cannot do it. The other thing would be to introduce it at third reading so we have an opportunity to make the addition requested by the adoption of the amendment.
Senator Sinclair: Are you saying a consequential amendment to the bill or to the act?
Ms. Davis-Ermuth: A consequential amendment to the bill.
The Chair: To the clauses of the bill.
Senator Sinclair: We could do it by not adopting that provision of the bill that’s referenced.
Ms. Davis-Ermuth: It would be a consequential amendment to the coming into force provisions of the bill. You would need to add it so those provisions would need to be adopted.
The Chair: With that, I would need to have an amendment in my hands. I could draft it myself. I know what we’re talking about, but I’m not authorized, according to the procedure, to do it.
As chair, I need to get text in front of us that I could put to the vote for the honourable senators. But that does not prevent us from adopting it because the clauses that are targeted come later in the discussion.
We still have time to do it tonight, when we adjourn, depending on the time.
Shall the amendment as introduced by Senator Dalphond carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: Shall clause 388, as amended, carry?
Senator Dalphond: I hear “on division.” I will ask for a recorded vote. I guess they are opposed that we have fingerprinting of these people, so a recorded vote, please.
The Chair: A recorded vote is requested.
[Translation]
Ms. Hogan: Honourable Senator Joyal, P.C.?
Senator Joyal: Abstain.
Ms. Hogan: Honourable Senator Batters?
Senator Batters: Yes.
Ms. Hogan: Honourable Senator Carignan, P.C.?
Senator Carignan: Yes.
Ms. Hogan: Honourable Senator Dalphond?
Senator Dalphond: Yes.
Ms. Hogan: Honourable Senator Dupuis?
Senator Dupuis: Yes.
Ms. Hogan: Honourable Senator Dyck?
Senator Dyck: Yes.
Ms. Hogan: Honourable Senator Gold?
Senator Gold: Yes.
Ms. Hogan: Honourable Senator Lankin. P.C.?
Senator Lankin: Yes.
Ms. Hogan: Honourable Senator McIntyre?
Senator McIntyre: Yes.
Ms. Hogan: Honourable Senator MacDonald?
Senator MacDonald: Yes.
Ms. Hogan: Honourable Senator Pratte?
Senator Pratte: Yes.
Ms. Hogan: Honourable Senator Sinclair?
Senator Sinclair: Yes.
Ms. Hogan: Yeas: 11; nays: 0; abstention: 1.
[English]
Senator Dalphond: I guess there is no division here. We’re all on the same page.
The Chair: Thank you. So the amendment is carried.
The Chair: Shall clause 388, as amended, carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: Shall clause 389 to 406 carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: Senator Sinclair, do you have a consequential amendment?
Senator Sinclair: I do.
The Chair: Of what clause, please?
Senator Sinclair: It’s clause 401.4 of the bill.
The Chair: Can we have a copy of the amendments for the honourable senators?
Senator Sinclair: It’s a suggestion simply that we vote against the provision in the bill to adopt 401.4.
The Chair: I will call the vote from 389 to — which one do you want to delete — 401?
Senator Sinclair: Yes, 401.
The Chair: So I will call the vote from 389 to 400.
Shall clauses 389 to 400 carry?
Some Hon. Senators: No.
The Chair: I will call then the vote on 389 to 399. Shall clauses 389 to 399 carry?
Senator Sinclair: Sorry, my mistake, too. It’s 401.1(4) that I will deal with.
The Chair: I understand that, but it comes after 399.
Senator Sinclair: It comes after 401.
The Chair: But I can’t call the vote on 400 because you are 400.1 so it is part of 400.
Senator Sinclair: No, 401.
The Chair: Okay, 401. I can call the vote on 389 to 400.
Senator Sinclair: Yes, 400.1 you can call the vote on.
The Chair: I understand. I can call the vote to 400. That’s what I have called earlier on but I was asked by you to stop. Shall clauses 389 to 400 carry?
Hon. Senators: Agreed.
The Chair: Agreed, thank you.
[Translation]
Senator Carignan: Mr. Chair, we are 20 minutes over time. It is clear that we will need another meeting, because we have to review the comments anyway.
[English]
The Chair: The chair’s attention was called to the clock. We have passed the 15 minutes of our allotted time. So since there are other amendments to deal with, I will mention them to you.
There is amendment 196.1 of Senator McIntyre, the corrections that we wanted to do; there is clause 240 that I stood, but now we have no amendments so I could call back the vote on 240; there is the consequential amendment of Senator Dalphond that might be drafted tonight so that we could do that quickly; and then there is the point raised by Honourable Senator Sinclair. So those will be the considerations of our next meeting plus the observations that the committee might want to append to the report.
I gave you, in a sequence, what there is still to be covered by us. I will ask honourable senators to be diligent and on time tomorrow morning at 10:30, and we will have all the documents ready for your consideration. We will do that work and then move on with Bill C-97, which is the sections of the budget that have been referred to us after we hear from the minister this morning.
This is the agenda for our meeting tomorrow. Thank you, honourable senators, for your cooperation. I know it’s getting complex, but we are close to the winding down on that important bill.
(The committee adjourned.)