Proceedings of the Standing Senate Committee on
Legal and
Constitutional Affairs
Issue 60 - Evidence
OTTAWA, Monday, April 21, 1997
Morning session
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-17, to amend the Criminal Code and certain other Acts, met this day at 10:04 a.m. to give consideration to the bill.
Senator Sharon Carstairs (Chair) in the Chair.
[English]
The Chair: This morning we begin our study of Bill C-17, an Act to amend the Criminal Code and certain other Acts. We will hear from officials on Bill C-17 this morning. The Canadian Bar and the Quebec Bar are not available until tomorrow, so we will be hearing from them tomorrow afternoon, as well as the Criminal Lawyer's Association.
Senator Jessiman: Have the witnesses this morning had the opportunity to see the Canadian Bar Association's recommendations?
The Chair: Yes, I have given the recommendations to the witnesses and asked that they comment on them.
Appearing before us today are Fred Bobiasz, Senior Counsel, Criminal Law Policy Section, and Catherine Kane, Counsel Criminal Law Policy Sector. Welcome to you both. Please proceed with your opening remarks and then deal with the summary recommendations we have received from the Canadian Bar Association.
Senator Corbin: For clarification, what is the distinction between Criminal Law Policy Section and Policy Sector?
Mr. Fred Bobiasz, Senior Counsel, Criminal Law Policy Section, Department of Justice: If I could start with that, I might be able to segue into my remarks.
The Criminal Law Policy Section is the unit within a broader policy sector of the Department of Justice responsible for criminal law matters. The Policy Sector itself has units responsible for public law matters, for firearms program, for young offenders, and a sentencing group. We have a variety of policy sub-units referred to either as groups or sections depending on how they have evolved.
I and my colleague Catherine Kane are in the Criminal Law Policy Section, and we are responsible for the development of criminal law policy matters including draft legislation. Both Ms Kane and myself have been involved in bills like this one and the one you will be hearing later this week.
I appeared here a little over two years ago on a bill which is similar in nature to Bill C-17, and that was Bill C-42. It was enacted as the Criminal Law Amendment Act 1984 and was referred to as a Miscellaneous Criminal Law Amendment bill. In many respects, this bill is a continuation of that initiative, and, indeed, I believe when we appeared at that time we forecasted another such bill.
This bill is not called the Miscellaneous Criminal Law Amendment Act but rather will be known as the Criminal Law Improvement Act 1996. That high-sounding title was chosen deliberately as a result of some observations in this committee that the matters dealt with in Bill C-42, when we referred to the bill as a Miscellaneous Criminal Law Amendment Act, deceived some people, including some senators, into thinking that the nature of the amendments were minor, technical, and purely corrective. As was discovered when Bill C-42 was reviewed, some matters were of significance.
That is indeed the case with this bill. Although most of the matters are technical and procedural, many of them, while they might be procedural, are of some significance, and other matters are not simply procedural but deal with substantive criminal law and evidentiary provisions. In the second reading speech delivered in the Senate on this bill, enough of an overview of the legislation was given so that you all should appreciate that, while there are many technical and minor matters, many of the matters are of some substance.
Rather than focus on the CBA's recommendations, I will mention a few things about which I know they have concerns, and one area in the bill which has quite a few changes has to do with proceeds of crime.
In 1988, Part 12.1 of the Criminal Code was enacted to provide for the initial seizure and restraint of suspected proceeds of crime and ultimate forfeiture. Provisions in this bill make adjustments to that area of the law. Indeed, one of the provisions in the bill goes back to the Senate deliberations in 1987 where an undertaking was made to ensure that a judge was aware of a prior application for a restraint or special search warrant, and that is taken care of in this bill.
More significantly, on the proceeds front, the changes are designed to enable the police responsible for investigating proceeds of crimes matters to engage in a more proactive fashion in certain undercover operations. Proposed provisions would exempt the police from criminal liability when they are involved in an undercover capacity with suspected money launderers. This would allow them not to technically violate the substantive defence. As a result of that, amendments are made to the Criminal Code as well as other federal legislation where proceeds matters are dealt with such as the Narcotic Control Act, the Food and Drugs Act, the soon to be enforced Controlled Drug and Substances Act, and the Customs and Excise Act.
Other changes in relation to proceeds of crime will permit matters dealt with in one province to have legal effect in other jurisdictions. Often criminal activity is not confined within provincial boundaries, and, indeed, in money laundering cases and other proceeds of crime cases, property and the offences often cross provincial boundaries, sometimes going from coast to coast, so some jurisdictional changes allow the more efficient operation of that area of the law.
One provision made at the request of the Canadian Bar Association relates to the ability of someone accused of an offence, where property has been seized and that property is believed to be proceeds of crime, to have access through an order of a judge to those proceeds in order to provide for reasonable living and legal expenses. That is part of the existing proceeds scheme, but it sometimes happened that police and law enforcement agencies seized suspected proceeds under other legal authority such as a conventional search warrant, so it was recognized that, if the policy that justified access to these seized proceeds under one part of the Criminal Code was valid, it should apply when proceeds were seized under another part. As a result, we have proposed an amendment to permit that.
Another matter mentioned in the CBA brief relates to a series of amendments to adjust the definitions of certain offences. The principal areas have to do with joy riding, being passengers in a stolen automobile, offences relating to credit card frauds, telecommunication frauds, and computer malfeasance.
We are making some adjustments in certain offence-related provisions in that area because of an increasing trend in criminality for criminals to take advantage of high technology to traffic in computer card information with the view of producing forged credit cards, accessing computer systems, and committing any number of frauds that could not have been contemplated 15 or 20 years ago before we got to the world of computers and telecommunications.
Senator Jessiman: Are you going down the summary of recommendations?
Mr. Bobiasz: Not really.
Senator Jessiman: Could you tell us where you are on it? Page 22 gives you a summary.When you are referring to a particular section, could you tell us what we could look at here? I am a little confused. They have 15 recommendations here.
Mr. Bobiasz: If you prefer, rather than me give my remarks as I had planned them, I could go down the list one after another.
Senator Jessiman: You can do either.I have read part of this, so I know what it says. I want to know what you say in reply to their objections. For instance, they say that they believe the police should not have the last say-so but that it should have judicial confirmation. I should like you to tell me why we do not need judicial confirmation. They are suggesting that, because of some ambiguity in clause 6 and for other reasons dealing with clause 15, they both should be deleted from this bill. I should like to hear from you why they are wrong or why you think everything should stay as it is.
Senator Pearson: I should like to hear the rest of his presentation, and then we can do that.
Senator Jessiman: I thought he was talking about this. If he is not, that is fine.
Senator Beaudoin: We need to know the Justice Department's reaction to the Canadian Bar Association recommendations, as we need to know the Canadian Bar Association's reaction to Justice.
The Chair: We should hear the rest of the officials' remarks, and then we will ask them to go through these one by one.
Senator Corbin: Did I hear you say that the Canadian Bar will appear before the committee?
The Chair: Yes.
Senator Corbin: Are we now considering their brief even before hearing from them? I do not mind, but I find it a most unusual procedure.
Senator Jessiman: Otherwise, we would need to bring them back later.
Senator Corbin: I find this astonishing.
The Chair: It is not our normal procedure; however, we are extraordinarily pressed for time.
Senator Corbin: Let it not be a precedent.
The Chair: While we have the officials here, and since we may not have them appear before us again, we do want them to go through the points raised by the Canadian Bar Association and have them give us their explanation for why the bill should stay as it is.
Please continue with your presentation, and then we will go on to the next stage.
Mr. Bobiasz: I was about to mention joy riding, and that is referred to in item 3 of the CBA's remarks. They do not want this change to be made.
Right now, the driver of a vehicle taken without the consent of the owner is libel for a summary conviction offence instead of what would ordinarily be the case, theft of the motor vehicle or possession of a motor vehicle of some value. The joy riding provision was put in there some years ago as a fall-back position to deal in a less serious manner with young people who take motor vehicles and go out on a lark. Often they take these vehicles to impress their friends. The first thing they do is go collect their friends and then go out for a ride.
Right now, the offence of joy riding can be laid against the driver. If you want to charge the friends, you must charge them with possession of a stolen vehicle because they are involved constructively and actually with the stolen vehicle. However, that is a more serious offence. Therefore, on some fronts, it has been recommended that the driving offence of joy riding should be extended to passengers in the motor vehicle. That proposal is dealt with in clause 15 of this bill.
This change also arises from submissions made by the Canadian Association of Chiefs of Police, the Insurance Bureau of Canada, and a Coroner's inquest. Often a vehicle that has been stolen, within which there are a number of individuals, is involved in an accident, sometimes as a result of a high speed chase, and everyone runs away. At that stage of the game, it is often difficult to determine who was driving and who was just a passenger. This provision is meant to impose a degree of liability on everyone who was in the vehicle knowing that it was stolen.
It is important to appreciate that a knowledge element is specifically required. The passenger must know it was stolen. Indeed, there is even an out clause, a provision giving a reasonable amount of time to an individual who only became aware that the vehicle was stolen sometime after they were in it. This allows that individual an opportunity to abandon or get out of the vehicle.
That is the provision to which the Canadian Bar Association refers. I do not know why they do not want it. We think it is a good offence. It is good for a number of reasons, not the least of which is that it will benefit young people simply because the only alternative now with regard to passengers is to charge them with possession of stolen property. This way, the offence that would be charged is a summary conviction offence. It would be dealt with, if it is a young offender, in youth court. It is a way to make everyone, including young people, responsible for their actions.
Senator Jessiman: They are saying that just being a passenger makes you guilty without any mens rea, and they believe that the law should require some evidence of participation rather than criminalizing passive acquiescence.
The Chair: Senator, proposed subsection 335(1.1) of the bill indicates that it does not apply to an occupant who has attempted to leave the motor vehicle to the extent that it was feasible to do so or actually left the motor vehicle. Once they learned that it was stolen and they agreed to remain in the vehicle --
Senator Jessiman: The question is, "Do they know?"
Mr. Bobiasz: In addition, proof is required, and this is found in proposed subsection 335(1). It reads:
Subject to subsection (1.1), everyone who, without the consent of the owner, takes a motor vehicle or vessel with intent to drive, use, navigate or operate it or cause it to be driven, used, navigated or operated, ...
This is the new part .
... or is an occupant of a motor vehicle or vessel knowing that it was taken without the consent of the owner, is guilty of an offence punishable on summary conviction.
With respect to the Canadian Bar Association, this is a mens rea element. It is a rather onerous thing for the prosecution to be required to establish.
Senator Jessiman: That makes sense. You know it is stolen, and you still stay there.
Mr. Bobiasz: Several changes are made to the impaired driving part of the Criminal Code. These are in response to several Supreme Court cases.
The most important change involves a situation where an individual was stopped, suspected of impaired driving, asked to take the breathalyser test, or the breathalyser demand was made, and was taken to the police station. Two tests are required. The first test showed a significant amount of alcohol in the person's blood. The person took a little break to go to the washroom. When they came back, they said that they were so nervous that they had to take a little drink. They had one of these airplane two-ouncers. The police took the other test, and it was about the same.
At trial, the prosecutor attempted to use the certificate of analysis, and it was found that, because there was this subsequent period of alcohol consumption, the court did not have the ability to rely on a presumption that the blood alcohol reading at the time of the test was the same at the time of the driving. The court accepted that this had to be so because of the way in which the legislation was drafted. They indicated that it did not seem to be a particularly useful thing to be available for an individual to rely upon, but, nevertheless, based on reading the words of the section, they gave effect to that defence.
This change which would alter that. Before the results of the test were rendered unusable, there must be evidence, not just that the blood alcohol level might have been different from the time of the test to the time of driving, but that it would be different in a way to suggest that it was under the legal limit. This provision is one of the main ones with regard to impaired driving.
Senator Jessiman: He did not have a test. He was picked up before he had the test, and then he went into the washroom and drank some alcohol, or did he have a test first?
Mr. Bobiasz: You must take two tests.
Senator Jessiman: He had the first test, then he drank, and then he had the other test.
Senator Gigantès: Could you amplify a little on that? You said that there should be evidence that the alcohol level before the first test was below a certain level.What sort of evidence would that be?
Ms Catherine Kane, Counsel Criminal Law Policy Section, Department of Justice: Currently in the Criminal Code we have a number of presumptions that the Crown can rely on to assist in the proof of an impaired driving offence, but they are all subject to evidence to the contrary because the Crown is responsible for proving every element of the offence beyond a reasonable doubt. If the accused can rebut the presumption, then it falls back to the Crown to prove beyond a reasonable doubt that the person was over the legal limit at the time that they were driving.
The presumption in the Criminal Code provides that the blood alcohol reading at the time of the test, a test properly done, is deemed to be the same as at the time of driving where that test is conducted within a two-hour period, thus avoiding the need to call a toxicologist to court to extrapolate back what would have been the reading at precisely the time of driving. It probably would have been higher, but, depending upon when the person consumed the alcohol, their blood alcohol is rising or falling.
Since the Criminal Code reads "in the absence of evidence to the contrary", Mrs. St. Pierre, the accused in this case, was able to say her alcohol content was likely different because she had gone into the washroom in the intervening 15 minutes and consumed more alcohol, so therefore it might have been higher.
Senator Jessiman: That is after the first test.
Ms Kane: A roadside test indicated to the police that she was in the danger zone. They brought her to the police station, gave her opportunity to consult with counsel, and she agreed to take the breathalyser test. They take one test, they wait 15 minutes, and then they take a second. The Criminal Code says you get the benefit of the lesser. The first or second test, whichever is lesser, would be the reading. She said, "You cannot rely on this presumption in court to say I was 0.17 because my evidence to the contrary is that it could not have been that amount because in the intervening amount of time I went and drank more. I had my little vodka."
Senator Jessiman: She had one test at the scene and one afterwards?
Ms Kane: The test at the scene is simply to provide police with the grounds to say someone is likely impaired and to demand the test that is conducted under rigid conditions in the police station breathalyser room.
Senator Jessiman: When she took the first test, of the two that count, she had not consumed any alcohol?
Ms Kane: She had consumed plenty of alcohol.
Senator Jessiman: I am referring to the two ounces. We know she is impaired.
Ms Kane: Allegedly, no, she had not. Then she said, "Please excuse me," and went into the lady's room.
Senator Jessiman: In the test without the extra two ounces or whatever it was, was she still over the limit?
Ms Kane: She was still over the limit.
Senator Jessiman: Then, when she takes the second test, is she even more over the limit?
Ms Kane: Not necessarily. Because of the way your body absorbs the alcohol, it may take an hour or two for it to register on a breathalyser. Nonetheless, it should not have affected the reading. She said, "There is evidence to the contrary. It could not have been the same. It is not accurate." The court said that, on a strict interpretation of the Criminal Code, evidence to the contrary means different, not lower. It means different, and this could have been different.
The purpose of this amendment is to make it clear. When you are relying on the evidence to the contrary to rebut the presumption, your evidence to the contrary must be such that your blood alcohol reading would have been lower than the 0.08 which is the legal limit. You are entitled to say you were not drinking or the machine was not functioning or whatever your defence is, but that evidence must be such that, on the balance of probabilities, the court would say you were likely under the legal limit, not that you were over but it was different so you are acquitted nonetheless.
Senator Milne: Where does that come into this bill?
Ms Kane: It is clause 10 dealing with section 258(1)(d) (i).
The Chair: The Canadian Bar did not have any problems with this section.
Senator Gigantès: You mentioned a two-hour period. Metabolism has a great deal to do with absorption of alcohol because of certain physical conditions of the liver. You may have to have a toxicologist there whatever the new bill says because alcohol is metabolized differently from individual to individual.
Ms Kane: We have these presumptions in the Criminal Code so the Crown does not have to bring the expert in. The Crown is entitled to rely on the presumption. The defence can call an expert to try to establish that they were not above the legal limit, but the Crown is entitled to rely on the presumption. Once the defence raises a reasonable doubt about their alcohol level, then the burden shifts back to the Crown to prove that this person was over the legal limit, and that may require the Crown to call an expert witness.
If you had to call an expert in every impaired driving prosecution, the administration of justice would be overburdened because of the level of the expert testimony and the length of the expert testimony. In all cases, these presumptions have been crafted to accommodate exactly your concern about the way the body absorbs alcohol. These provisions in the Criminal Code must be rigidly complied with in order for the Crown to rely on those presumptions.
Senator Gigantès: I do not like presumptions.
Ms Kane: They are rebuttable.
Senator Beaudoin: We need them for the administration of justice.
Mr. Bobiasz: A number of other provisions are meant to adjust the rules with respect to pre-trial release, release that is permitted either by a police officer or by the court. The first recommendation of the Canadian Bar Association indicates that there be confirmation of conditions of release before there is a charge.
Under Bill C-42, it became possible for an individual to be released by a police officer if the individual was willing to accept one or more of a limited list of conditions. This benefits accused persons, police, and those responsible for administering bail courts. Often, the police would be quite content to have someone out of custody provided that the individual abided by conditions, i.e., to stay away from witnesses, not to go back to a residence where there is an altercation, often a domestic dispute, and other similar conditions.
Until Bill C-42, the individual had to be kept in custody, often anywhere from 6 to 48 hours, until they had an opportunity to appear before a Justice of the Peace at a bail hearing. At that time, the accused person, through counsel, usually accepted one of these listed conditions. The net effect of it was that the accused spent time in custody needlessly. The court was clogged up, and resources, in the way of prosecutorial resources and court officials, was consumed.
Bill C-42 changes have been received with a fair bit of success. However, a number of changes to improve it were suggested and are found in this bill. One of these changes was to permit the police to consider more conditions. The two main conditions here have to do with refraining from possessing firearms or abstaining from alcohol or drugs. Another change has to do permitting, with the consent of the prosecutor, variations in these conditions without having to appear in court and have a formal hearing.
The final change relates to the observation of the Canadian Bar Association. They suggested that there be judicial confirmation. That came as a result of a restructuring of the offence in section 145(3) which was amended in Bill C-42 but was rather confusing, so that there be a separate offence of failing to abide one of these conditions that the accused person agreed to accept.
The observation of the Canadian Bar Association with respect to the main offence in section 145(3) was that, before liability could be imposed with respect to failing to honour an appearance notice, there had to be some type of a judicial confirmation. That was deliberately removed because, what is often needed with regard to one of these conditions is assurance that it will be obeyed right from the beginning, whereas judicial confirmation often takes anywhere from 24 hours to six weeks depending on the jurisdiction.
In many instances, an individual accepts release subject to a condition such as not to frequent a particular place or to have contact with the victim or a witness. The individual immediately on release or very soon thereafter goes back to the place or has contact with the victim. It would be impractical to require liability to be imposed only subsequently once, sometime down the line, a judicial officer had confirmed it. As a result, the only way this provision would work would be to have the accused subject to liability for breach of the condition on the breaching of the condition, irrespective of whether a judge had confirmed anything.
Therefore, we find it difficult to accept the proposal of the Canadian Bar Association. It would render the scheme in many respects unworkable, and, consequently, the police would simply keep the individual in custody anywhere from 6 to 48 hours until they appeared before a judge, after which time a release would be ordered subject to conditions by the judge. We would be going back to where we were before Bill C-42.
The next heading is warrants. CBA has made a number of observations with respect to warrants. We are making quite a few changes, none of which are of substance and most of which are simply clarifications and codifications or improvements of the existing scheme.
An example of an improvement from the perspective of accused persons or people who might be subject to a warrant --
Senator Milne: To what section of the bill are you referring?
The Chair: Sections 45, 46, and 48 which are the ones about which the Canadian Bar are concerned.
Mr. Bobiasz: This is on pages 21 to 28. There are a number of changes throughout this part of the bill.
One change with which the Canadian Bar Association did not have a problem had to do with executing search warrants by night. Right now, the rule is you execute by day unless a judge permits you to execute by night. Through this bill, the judge will be required to consider the reasons. There is no requirement right now for reasons to be presented, and one of the changes here would provide for that.
Another change meant to benefit people who might be subject to search warrants is the ability for the authorities to deal with perishables. If property is seized which could deteriorate, such as a truckload full of vegetables, the only thing the authorities can now do is keep those vegetables, and, over time, they would obviously deteriorate. Now there would be an ability to seek an order to be able to dispose of perishables to the benefit of whoever might be found to be the owner of them.
In the nature of clarifications, although the Canadian Bar Association made some observations on them, we propose to add a new provision -- I believe it is 487.11 -- which is a codification of what is taken to be the authority of the police and others to seize and search in exigent circumstances.
There is now authority in the Criminal Code to obtain warrants, but there is no mention of an authority to seize when it would be impractical to get a warrant either directly from a judicial officer or using telecommunications or fax. It is recognized in the cases that a warrant in these circumstances is permissible.
Indeed, the main reason we are doing it in this bill is that over the years -- by "over the years", I mean since 1982 when the Charter came into force -- more and more federal statutes are codifying the exigent circumstances provision. They started doing that because, while there did not seem to be much doubt that this was available at common law, in support of criminal matters, there was some doubt that it was available in regulatory searches. In 1986 we had the Charter Law Compliance Act, so they provided for exigent circumstances in many federal statutes.
More pertinent to the Criminal Code, in terms of the nature of the matters, two years ago, in Bill C-8, the Controlled Drugs and Substances Act, they codified an exigent search provision in respect to drug matters. It was recommended to us that the time had come to do that in the Criminal Code, so essentially we took what was in Bill C-8 and are proposing that it be adopted as section 487.11.
The Bar observed that we should spell out what are exigent circumstances. We do not feel that is necessary. It was not felt to be necessary in Bill C-8, and it is found in some federal statutes. Essentially, it relates to including but not limited to situations where the time required to get a warrant would result in a loss or destruction of evidence or in harm or safety to persons. That formula is in the case law, and that formula is in some statutes.
However, given the relationship to the Criminal Code and the drug statutes, we think we would be better off to leave it as it is. The case law seems to be quite clear as to what are exigent circumstances. They always leave an opening as to what other set of circumstances might arrive which would justify the police to act without the authority of a warrant.
It is clear to most practitioners, be they Crown prosecutors or defence lawyers, that the Charter law around Section 8 of the Charter, which is the guarantee to be protected from unreasonable search and seizure, requires the prosecution to justify any search that is made without a warrant. Therefore, any concerns the defence might have with regard to what they might believe to be an extension are not well-founded because an ex post facto review would occur in most cases.
In a similar matter, the Canadian Bar Association, in referring to some of the changes to section 489 --
Senator Beaudoin: Before you move on to section 489, I should like to ask a few questions about section 488. The Bar is saying that if you are seizing things that are not in the first warrant, you should obtain another warrant. That sounds reasonable to me, but you take the opposite view. You say no, every person who executes a warrant may seize, in addition to the things mentioned, anything that the person believes on reasonable grounds etc. etc. You may be right, but I wish to know a bit more about it. Why do you suggest that?
Mr. Bobiasz: That is where I was going. That is not the exigent circumstances but the plain view provision.
The Chair: That is the difference between the Bar's Recommendation No. 8 and No. 10.
Senator Beaudoin: You are right.
The Chair: So we can move into the next area.
Senator Jessiman: However, the onus is on the Crown to say they could have obtained the warrant.
Mr. Bobiasz: Exactly. This goes back to exigent circumstances. The conditions to get a warrant exist, but you invoke exigent circumstances because of impracticability.
Senator Jessiman: The onus is on the Crown to prove that.
Mr. Bobiasz: Exactly.
We should all appreciate that section 489 already exists and does provide for seizures of some things in the execution of a warrant. Two extensions are being proposed here. One is fairly slight, the other is a little more significant.
Now, when the authorities are executing a warrant, they can seize something outside of the scope of the warrant if there are reasonable grounds to believe that it has been obtained by the commission of an offence under the code or any other act.
The Chair: Are the senators clear where we are? It is on page 24, section 489.
Mr. Bobiasz: Again, reasonable grounds are required to show that it has been used in the commission of the offence. We are proposing to add reasonable grounds to believe that it will afford evidence in respect of an offence. It is simply extending the categories to cover the field. Again, it is another matter that is felt to be necessary because of what was put in in Bill C-8, the Controlled Drugs and Substances Act.
Senator Beaudoin: Has this extension been tested in court yet?
Mr. Bobiasz: I think it has. In some cases, the courts have recognized that, if it is discussed in terms of the plain view doctrine where the police properly executing a search come across something and have reasonable grounds to believe that it is evidence of an offence, they can seize it.
Senator Beaudoin: What if they are wrong?
Mr. Bobiasz: The search would then be found to be invalid, and, if challenged pursuant to the Charter, would probably lead to the exclusion of that item if it is sought to be used in a subsequent prosecution.
Senator Gigantès: What about all the other items from that search?
Mr. Bobiasz: I do not know.
Senator Gigantès: Does it vitiate the whole search?
Mr. Bobiasz: Along with other circumstances, it might lead to a vitiation of the entire search if it is done improperly.
Senator Beaudoin: You take a calculated risk.
Mr. Bobiasz: Yes.
Senator Beaudoin: That is life.
Senator Gigantès: Considering the low level of intelligence of some police forces, this worries me.
Mr. Bobiasz: I would not like to get into a discussion about the relative intelligence of anyone.
Senator Gigantès: This is a personal opinion.
Mr. Bobiasz: I would hope so.
The other area we are expanding in section 489 is the situation where the police are lawfully performing duties and, during the course of those duties, the same kind of materials are presented to them.
The Chair: Is this the section where they are not getting a second warrant?
Mr. Bobiasz: They are not getting a second warrant, or they are doing something but they are not executing a warrant. For instance, they may have stopped a motor vehicle pursuant to a Highway Traffic Act and see contraband, drugs, weapons, or whatever in the motor vehicle. If observing that is sufficient, reasonable grounds for them to act, they would be entitled to seize that if it falls within one of the categories listed. They would not be required to go away, get a warrant, and hope that the motor vehicle is still there.
Senator Kenny: Could they open a trunk?
Mr. Bobiasz: No. This is a power of seizure, not a power of search, and that is an important distinction.
Senator Milne: It is something that must be in plain view, then.
Mr. Bobiasz: Yes, in plain view. There is an abundance of case law in Canada and the United States where police officers, for instance, see a stereo and flip it over to get the serial number, run it through their computer and find it to be stolen. That was found to be an illegal seizure because it was not in plain view. That which gave them the grounds required a search. That led to the voiding of the procedure in the same way that if their warrant allows them to look for a weapon, a rifle or something and they start opening drawers and see in plain view something which is obviously within the categories, it would not be valid simply because searching for a rifle would not entitle them to look into a drawer.
Senator Kenny: Why not?
Mr. Bobiasz: When you execute a search warrant, it must be executed reasonably. If your objects of search are such that only certain parts of the place you are searching would be apt to contain the item, then you cannot go beyond that.
Senator Jessiman: It is not reasonable to expect that a rifle would be in an ordinary drawer.
Mr. Bobiasz: That is right. Some American cases state that, if you are searching for an elephant, you cannot look in the closet.
Senator Kenny: I lost you on the example where the car was stopped for a Highway Traffic Act offence and the stereo was there in plain sight. You said there was a problem if the police officers saw the stereo and turned it over.
Mr. Bobiasz: In order to determine whether or not that was likely a stolen good, if he or she had to examine the stereo, that would be a search, and the plain view doctrine simply authorizes seizures of things that are plain to you.
Senator Jessiman: You must know that it is a stolen good, but not by checking the serial number?
Mr. Bobiasz: Yes. If you stop a truck, for instance, and you look in and see 16 cartons of stereo equipment or VCR's, and if this happens in the middle of the night in an area where there are stores or warehouses that deal with this equipment, all of those circumstances together might lead to reasonable grounds to believe that this is stolen property, and you would then be able to seize it.
However, the point that I wanted to make is that the plain view doctrine authorizes seizures, not searches. If you are stopping an automobile for a motor vehicle offence, unless you have some other thing that happens, there is no particular reason why you should look in the trunk. If you looked in the trunk, chances are that that would vitiate the procedure simply because it was outside the scope of what you are entitled to do in regards to an automobile stop.
Another important matter in warrants which I should mention, because the CBA mentions it, is referred to in Recommendation No. 7, referring to clause 45 of the Bill. Their recommendation includes the words, "... to conform to the protections established in Bill C-104... " Clause 45 of the bill permits a Justice of the Peace to authorize a warrant for the taking of impressions of bodily parts: footprints, fingerprints, handprints, and teeth impressions.
Senator Kenny: Is that it?
Mr. Bobiasz: No, that is not it, but I do not want to go there.
Senator Jessiman: It could be any part of the body.
Mr. Bobiasz: That proposal results from a recommendation from the Province of New Brunswick at the Uniform Law Conference several years ago, and although we did not know it at the time, it related to a case that occurred in New Brunswick which was a relatively gruesome murder of a young person.
Some of the evidence was obtained, quite improperly as it turned out in the view of the Supreme Court, when the police coerced the suspect into providing an impression of the person's teeth and it matched with bite marks on the victim. There were some other problems with that case, and several months ago the Supreme Court of Canada ordered a new trial. That trial is to happen some time in the fall, and they are interested in this particular provision because they would want to seek a judicial authorization to get the teeth impressions for the purposes of evidence in that trial. I mention that simply because it reinforces my point about not being misled about the nature of these changes. Some of them are fairly significant.
The Canadian Bar Association is making a comparison between the impressions that you can take pursuant to this warrant and the warrant that was recently enacted one or two years ago to allow bodily substance samples to be taken for the purposes of DNA analysis. They seem to suggest that the same consideration should apply.
We do not think so. We think that the privacy interest at stake and the level of intrusiveness involved with respect to warrants for DNA analysis is much higher on the spectrum than would be the case with respect to bodily impressions which would range from a fingerprint to tooth impressions. Therefore, this is quite a defencible scheme in terms of the spectrum.
If you examine what has been enacted the last several years by the Department of Justice, we make distinctions between the perceived gravity and obtrusiveness of the procedure. When it is felt to be worthy of more constraints and higher considerations, we do that. That was done with respect to DNA. That was done with respect to the general warrant under 47.01, and that is what is done with respect to electronic surveillance.
On the other hand, something like this can be done in a relatively painless fashion; therefore, we think it is quite appropriate to allow a warrant to be obtained along the same lines of the warrant that could be obtained to search your house.
Senator Corbin: I would like some clarification with respect to the New Brunswick case. Did I understand you to say that the clause aims at clarifying the law, or is it a new provision?
Mr. Bobiasz: It is a new provision. There was a belief that the present section 47.01, which authorizes a provincial court judge or a higher judge to do something for which there is no provision and which would require a warrant, could be used, but there is a limitation in that provision having to go do with non-interference with bodily integrity.
Senator Corbin: Did you tell us that that case is still before the courts?
Mr. Bobiasz: Yes.
Senator Corbin: We are legislating post facto.
Mr. Bobiasz: Not at all. Procedural provisions speak to the future.
The Chair: These provisions do not take effect, and, since that trial is already in process, it would not be affected.
Senator Corbin: Will it not apply to that particular trial?
Mr. Bobiasz: It will.
Senator Corbin: That is where I have difficulty. Every time you run up against a wall in court, you go to the Minister of Justice and say, "Pass this so I can incriminate this guy."
Senator Beaudoin: How can you intervene like that?
Senator Corbin: That is the impression left with me by the witness's remarks. I hope I am wrong.
Mr. Bobiasz: You are wrong in the sense that every time that there is a problem you can go to the Minister of Justice and get a solution. You are wrong in the sense that any law can be passed to apply retrospectively, but this is purely perspective. It is the same thing. For instance, one of the consequences of the DNA legislation that was passed several years ago is that they have been able to take advantage of the new ability to get a warrant with respect to matters that happened anywhere from six months to 20 years in the past, simply because a procedural provision speaks to the future.
Senator Beaudoin: It is for the future only.
Mr. Bobiasz: It can apply to an event that occurred in the past.
Senator Pearson: As in the Jessop or Guy Paul Morin case?
The Chair: Are you saying these sections are retroactive?
Mr. Bobiasz: They can be applied as soon as they come into force for something that happened in the past.
Senator Kenny: You are saying that if no action has been taken by the authorities up till now but they discover something that happened in the past, then it can be applied, but if a court action is already underway it cannot be applied to that?
Mr. Bobiasz: I am not saying that.
Senator Kenny: I do not understand you either.
Mr. Bobiasz: All I am saying is that if a matter is still before the courts, if it has not been finally decided.
Senator Jessiman: Where before the courts? At the appeal level, at the trial level, or at what level?
Senator Beaudoin: Give an example.
Senator Jessiman: Does this apply to that case in New Brunswick?
Mr. Bobiasz: The prosecutors in that case believe it will.
Senator Jessiman: Where is that case at the moment?
Senator Beaudoin: It is awaiting trial.
Mr. Bobiasz: It had one trial, and that trial was found to be invalid. It is awaiting trial.
The Chair: There is a slight window of opportunity then.
Mr. Bobiasz: Yes.
The Chair: It could also be used in the case of a crime that had been committed but for which no suspect had been found. For anything of that nature, you could apply these rules.
Mr. Bobiasz: To use the DNA example, in police files going back any number of years there might have been evidence that can be tested. If you identify a suspect as a result of doing something now, that can certainly be used as evidence, and that is one of the values of the DNA warrant.
The Chair: In the Guy Paul Morin case, you could not have used DNA at a certain point because you did not have it. Now you have it, so you can use it.
To be clear between what you are doing here as opposed to the DNA evidence, you are saying that a blood sample for DNA purposes or a hair sample or a saliva sample for a DNA purpose must come under the DNA Act provisions?
Mr. Bobiasz: Yes.
The Chair: These provisions would be a footprint, a hand print, or a fingerprint. The one I have a difficulty with, because it is intrusive, is someone's teeth print. How would you get that without invading their body with something?
Mr. Bobiasz: That is the reason we think it should only be done pursuant to a judicial authorization.
The Chair: I understand.
Senator Pearson: The distinction between the DNA Act and this bill was helpful. However, I was concerned about it being prospective versus respective. In the Morin case, the new evidence used to free him, not to acquit him, which is different.
Mr. Bobiasz: There is no doubt about that. Whether the DNA bill would have been there or not, it still would have been used for that purpose. We have rules that permit evidence obtained after the fact that would help an individual.
Senator Pearson: Those rules already exist.
Mr. Bobiasz: Yes, they already exist.
Senator Gigantès: In cases of someone having bitten someone else and left an impression, then an imprint of the teeth is necessary to prove that the bite occurred; is that it?
Mr. Bobiasz: It would be helpful.
Senator Gigantès: It would prove that it was one person who did the biting and not someone else in order to corroborate the evidence of the bitee?
Mr. Bobiasz: It would connect the suspect to the victim.
Another search and seizure provision that is part of the CBA's submission has to do with Recommendation No. 6, and it refers to clause 41 of the bill which is found at page 21.
This provision is meant to provide some procedural rules which relate to searches which have been authorized under section 487.01 that involved a computer system. It does not provide for a search of a computer. I simply indicates that when a warrant is issued with respect to a computer or computer system, the new provisions would apply. These are needed because computers give rise to a whole set of problems just because of their nature.
If I understand the CBA's suggestion, it has some concerns that the search of a computer might be too broad and that there should be something to confine it. We do not see how. The breadth of the computer is governed by judge's obligation to consider the information to obtain a search warrant and properly delineate the scope of the search. Those safeguards are provided by the judge.
Clause 41 includes safeguards to ensure that the police are able to obtain the relevant information in a computer system without having to overly inconvenience the owner of the computer by seizing the whole computer. There have been instances where the only way the police felt that they could properly execute the search is to physically take the computer, disconnect it, take it to their lab, and examine it, sometimes inconveniencing the operators of the organization which owns the computer. These provisions make it clear that, in law, it would be possible to do the search on site, look for the information that is the proper object of the search, and obtain copies of that without taking the whole computer system.
It does not authorize the judge to authorize a search beyond what is permitted by the scope of the search warrant. Rather than it being an overly extensive realm of authority, it is meant to restrict matters.
Senator Pearson: It is helpful to consider examples. I have just recently become unpleasantly aware of cases of child pornography in which the search warrant was used to seize the computer. In this case, you could go into that person's home and, if you found that you could print out the pictures that had been circulated otherwise, that would be adequate.
Mr. Bobiasz: If the investigators felt that that is all that they needed, this would allow that. They might feel that they need more. Rather than print it out, they might have to use special software which allows them to examine erased files, for instance, to determine if pornographic images had been deleted recently.
Senator Pearson: I do not know how many images you need.
Mr. Bobiasz: I am not an investigator myself, but it is meant to make the limited search of the nature that you mentioned possible.
Senator Pearson: In the current situation, in order to get that information, you might have to seize the computer itself and take it in, and this will make it possible to do it within the person's domain.
Mr. Bobiasz: You could do it on site, and you could also enlist the assistance of a systems operator. For instance, if my computer in my office is the target, I might have passwords. I might have protections that would make it difficult to get access to my files. One of the changes here would impose a duty on the systems operator who invariably has control over the passwords that are part of a computer system to assist the authorities in getting access to my hidden files.
Senator Beaudoin: I do not think you and the Canadian Bar Association are so far apart. They are asking that, when we apply clause 41, we must comply with the legal requirements that now exist. Why not? Are you against that?
Mr. Bobiasz: Not at all. The issue is that we must say in each case and in every respect what all the other legal requirements are that relate to a particular matter. Prosecutors and defence counsel are aware enough of the legal requirements to know when a particular search is kept within the law or goes outside the law.
Senator Beaudoin:You are not obtaining a certain power under clause 41 that does not now exist which enables you to not comply with all the general principles of law. I am not too sure what they mean here. It is quite general. Since the principles of law apply generally, I do not see big problem there. We can ask the Bar Association about that tomorrow.
Senator Corbin: Do you think the medical profession would object strenuously to this provision in view of the confidentiality of doctor/patient relationships? That matter was raised when we looked at the law concerning international convenants on drugs. The medical profession came before this committee and objected strenuously. Is there a problem?
Mr. Bobiasz: I do not think there is a problem with this provision so much as the existing medical provision that authorizes the search. This does not authorize the search. Section 487.01 authorizes the search.
The medical profession might have a problem with regard to a conventional search warrant. For instance, it might be directed at the hard copy files right now. They may have a problem; they may not. This does not add or subtract from that at all. This does not give new search authority. When a judge properly issues a warrant directed at anything, if it involves a computer, then these provisions are relevant. There may be some difficulty with searches directed against medical records in the same way they might be directed at banking records or lawyer's records. There are other rules that may apply.
Indeed, you will be hearing from Ms Kane about an area that is quite disturbing to certain parts of the medical profession, and that is when confidential counselling records are sought. However, there is a different set of laws that applies to how we treat confidential information or privileged information. This provision does not do anything one way or the other with respect to those concerns.
Senator Jessiman: Does this clause enable the Crown to compel the person on the premises who owns this computer, or is it the person who actually operates the computer? When it says "cause to be used any computer system", does that mean the Crown can go in and say, "All right, you reproduce for us or you bring up certain things from this computer," or does the Crown bring in their own people?
Mr. Bobiasz: It is usually both. It can be both. This provision imposes a duty on someone in charge of the system to cooperate.
Senator Jessiman: To permit. "Every person who is in possession or control of any building or place ... permit the person carrying out the search ... to use or cause to be used ..." It does not go as far as I would have thought it would if they want someone who is familiar with that particular computer to do something in respect of the computer in order to get the information they require. I do not know if the section goes far enough, but it may. Do you see what I am saying?
Mr. Bobiasz: A provision in the code permits an assistance order to be obtained in conjunction with a warrant that requires individuals to assist the police or the person executing a warrant.
Senator Jessiman: This does not quite go that far. It does not appear to.
Mr. Bobiasz: You are quite right.
Senator Gigantès: Are you asking him to commit some sort of self-incrimination?
Mr. Bobiasz: If it is the accused person, that might be an issue, and the accused person could probably validly refuse to cooperate.
Senator Gigantès: If it is someone related to the accused person, in order to protect the accused person, they could make the computer crash by pushing one button. It would be highly injudicious on the part of those executing the warrant to let anyone play around with the computer other than their own experts.
Mr. Bobiasz: A prudent investigator might take something like that into account. As a matter of fact, I received a call several months ago from a Crown attorney who was assisting a police officer developing an investigative plan with regard to a computer network. They wanted to know if there was authority to get the telephone company to cut off the phone lines to the place where the search was to be executed to avoid the very thing you mentioned.
The Chair: We have dealt with recommendations 1, 3, 6, 7, 10, and 12. Let us go back and look at the area with which we have not dealt, starting with the CBA's Recommendation No. 2 dealing with clause 6.
Mr. Bobiasz: Clause 6 is an evidentiary provision that was proposed by the Federation of Canadian Municipalities to deal with the relatively low-level offence of causing a disturbance. The present interpretation of the provision, when there is a disturbance in a public place, requires witnesses other than the police investigating the matter to be called to prove the offence. This provision is meant to around a narrow interpretation which said that a police officer called to investigate a disturbance that bothered the public is not part of the public. This provision is simply to permit the peace officer to give evidence that there was a disturbance in a public place.
The Chair: You are saying that, in the past, if a person was drunk and disorderly in a small municipality and the only person who ventures on the scene is a police officer, he could not give evidence because he was considered a police officer, not a person?
Mr. Bobiasz: The police officer was not a member of the public that was disturbed.
The Chair: Why would the Bar object to this?
Mr. Bobiasz: I do not know.
Senator Jessiman: They are concerned about the words "loitering" and "obstructing" referring to a quiet meeting. It is in the hands of these peace officers. It could happen to any gathering of friends. They say political discussions and demonstrations are all subject to the expanded powers of arrest that this provision might authorize.
Mr. Bobiasz: If that is the case, I think they are objecting to the offence itself rather than the narrow thing that is being done here, which is to permit a particular element of the offence to be proved through the testimony of a police officer.
Senator Beaudoin: However, if the only person present is a police officer, then they conclude that the public is not present. The public is not disturbed if there is no public. I understand that. However, if there is a police officer, is he not indirectly part of the public too?
Mr. Bobiasz: It is to permit the peace officer, as opposed to calling witnesses from the public, to testify that there has been an obstruction. It is not to permit the offence of obstruction to be proved if there has been no obstruction. It is just to permit the peace officer to prove that. It is also subject to evidence of the contrary. It is a technical thing. It is not enlarging the offence, and it is not imposing liability for disturbances that would not presently be caught. It is simply permitting some members of the public not to be inconvenienced through being called as witnesses. It might lead to more convictions because often some members of the public do not want to get involved.
The Chair: There is nothing to prevent the person being charged from calling witnesses to say that what the police alleged took place did not in fact take place.
Senator Beaudoin: I hope so.
Mr. Bobiasz: The present provision already provides for this kind of proof with regard to the element of a disturbance that is required in the offence. All this does is permit the police officer to testify to the element of obstruction if that is relevant. However, there must be an obstruction.
Senator Beaudoin: If there is an obstruction, what is the purpose of the section?
Mr. Bobiasz: It is to permit testimony of a peace officer that there has been an obstruction rather than individuals other than a peace officer testifying that there has been an obstruction.
Senator Beaudoin: It is a question of evidence.
Mr. Bobiasz: It is a purely an evidentiary thing. I am sure when I check the record tomorrow that I misspoke at the beginning when I probably said that it permits a peace officer to be obstructive. I was thinking more of the causing of the disturbance, which is not what is dealt with here.
The Canadian Bar Association's Recommendation No. 5 refers to something I alluded to a while back when I said that there are changes that would permit police to engage in undercover operations with respect to certain offences, principally offences related to money laundering.
Economic crime involves, of necessity, large sums of money being converted from their illegitimate source into an apparently legitimate source, and that is captured by offences relating to money laundering. The police have been trying to set up businesses where they pretend that they are out there to launder criminal money. When this started several years ago, it was felt to be quite appropriate. Case law suggests that technique is not available to the police because, as drafted now, the police would be committing offences and pretending to commit offences. We are saying no, when police deal in elicit funds for the purposes of their duties, they are not, for that reason only, committing that offence.
As I understand the Canadian Bar Association's remarks, they are concerned about the possibility of entrapment and that the police would be overly aggressive and entice individuals who would otherwise not be disposed to commit an offence into committing an offence. We do not think that is necessary simply because the law of entrapment is well-developed and has been applied successfully to overly aggressive police forces who, on their own or through the use of informants, entice people into committing crime.
In these circumstances, the only thing that would be permitted is the police being able to provide an opportunity for those who are otherwise predisposed to commit the offence to commit the offence.
The Chair: In this particular one, they seem to want reasonable safeguards against abuse and entrapment that exempt from criminal liability, and they also want a clear and narrow definition. I am combining their fourth and fifth recommendations. Surely that has been done.
This is the problem when we do not have the whole act before us. In the amendment to section 462.31, we have, in the last sentence, the words, "derived directly or indirectly as a result of". Yet, in the Criminal Code, it then says the commission in Canada of an enterprise, crime, offence or a designated drug offence or an act or omission anywhere that has occurred in Canada would it constitute an enterprise, crime offence or designated drug offence. Clearly that is not removing (a) and (b), is it?
Mr. Bobiasz: No, not at all. The response we would give to the Canadian Bar Association's submission is that the law of entrapment provides defences to accused persons who believe that they have been unfairly enticed into crime.
The Chair: Recommendation No. 9 deals with the plain view seizure.
Mr. Bobiasz: That point was raised by Senator Beaudoin when I was discussing exigent circumstances and the elephant/closet metaphor.
The Chair: Recommendation No. 11 deals with section 503(3).
Mr. Bobiasz: This provision deals with the difficulty that sometimes exists when someone is arrested or discovered away from the scene of the crime or where the offence was committed. I do not want to say they fled, but just that the crime may have occurred in one part of the province and the person is picked up in another part of the province.
It is not a problem in law in many jurisdictions simply because the Justice of the Peace in many provinces has province-wide jurisdiction. When someone is arrested and brought before them, they order the person to be returned to the place where the Information was laid. In some jurisdictions, the authority of a Justice of the Peace is limited to the judicial district in which they function. Those provinces need to have an ability in the place of the finding jurisdiction to send the individual back to where the offence was alleged to be committed.
The primary obligation in the Criminal Code, and it is one we think is sufficient when someone is arrested, is to ensure that that individual is brought before a justice as soon as practical and no later than 24 hours. That refers to the arresting jurisdiction. I think the Canadian Bar Association would have us impose a time limit subsequent to that. We do not think it is a good idea simply because we have no control, and often police forces and courts have no control with which officials can arrange for things to happen.
The Chair: Surely that is a bit impractical in the sense of a northern reserve community. You would not have a flight out.
Mr. Bobiasz: That is exactly the kind of situation to which I refer, and indeed we have other provisions to take care of those situations. We want to be able to have some things happen by telephone or video-conferencing because of the varieties of places we have in our country. I understand where they are coming from, but I do not think that we should be required to permit the release of an individual just simply because a flight was delayed or cancelled.
The Chair: Please deal with Recommendation No. 14.
Mr. Bobiasz: There are several provisions here which deal with small aspects of costs in criminal matters. One I alluded to was the ability of lawyers to apply to get their legal fees taken out of seized assets that were subject to forfeiture. I do not think they are referring to that one.
The only ones I think they could be referring to are provisions whereby it is possible for a court to order counsel for an individual with respect to a certain matter, and the two areas with which we are dealing in this bill have to do with the mental disorder part of the Criminal Code.
We are simply ensuring that there are some rules to determine the amount of costs and who must pay them when this procedure is invoked.
The Chair: Where is the section?
Mr. Bobiasz: I do not know.
The Chair: Is it just a general recommendation on their part?
Mr. Bobiasz: I am sorry. My colleague Ms Kane has advised me that they are referring to a completely different provision, and that is clause 94 on page 43.
Until the Charter, costs were never a matter of importance in a criminal prosecution. Unlike civil litigation, awards of costs were not given to counsel whether they be the winning counsel or the losing counsel.
With the Charter, and increasingly more prevalent in the last five years, as a remedy for alleged misconduct on the part of the police or the prosecution, some judges are awarding costs against the Crown for a found infringement of a Charter right. This is unbalanced. This is probably a good thing because the most common remedy is that evidence is excluded or a prosecution is stayed, which is in many respects not socially desirable.
However, it does impose burdens on prosecuting authorities which, up until now and probably even now, do not have budgets to pay costs or damage awards. This new provision is designed to give an appellate court jurisdiction to review an order of cost.
The Canadian Bar Association seems to think that there should be a complete code. We think that is premature.
The Chair: That is not what they are saying. They want the judgment made in a socially balanced context.
Mr. Bobiasz: I do not know what that means.
The Chair: We will leave that up to the judge, I guess.
Senator Milne: I was about to ask that same question. What is your objection to the recommendation of the Bar Association? They seem to ask that parameters be set up rather than asking courts to create their own principles on a case-by-case basis.
Mr. Bobiasz: Our objection is that now we have no way of determining what the appropriate parameters are. As well, I am not sure -- and I do not think this is necessarily the view of the department, but I am not sure -- with respect to a remedy which the court has ordered in respect of a Charter breach, how appropriate it is for the government to propose contours for that remedy. It is something with which we have had to deal. One of the recommendations has caused us some concern in that regard, and I will mention it in a minute.
It is hard to balance the jurisdiction of the courts under the Charter with the jurisdiction of the Parliament, so to speak, with regard to what is appropriate for Parliament and what is appropriate for the courts. This was not much of an issue until the Charter, but it is becoming increasingly a delicate issue. Indeed, Bill C-46, which you will be considering soon, is all about the extent to which we can look at what the courts have said is required under the Charter and make adjustments to it.
If that is enough on the cost issue, I could go to another important provision on the CBA list, and that is Recommendation No. 12:
... the third consideration in making decisions about judicial release under proposed section 515(10) of the Criminal Code either be deleted or defined more precisely.
This refers to a change to the bail provisions of the Criminal Code. It now indicates that a decision with regard to pre-trial release or detention should be determined on the primary ground or the secondary ground or on any other ground that is in the public interest. The primary and secondary grounds relate to the safety of the public and whether or not someone will appear for their trial. Up until four years ago, there was a third category based on the public interest, and the courts had a residual discretion to consider detaining someone in custody for reasons other than those two grounds.
In the case of Morales, the courts found that the public interest ground was not acceptable from the perspective of the Charter. They felt that the existing provision, because it authorizes detention in terms which are vague and imprecise and thus authorizes a denial of bail without just cause, contravened section 11(e) of the Charter.
As a result of representations made by a number of jurisdictions, we have attempted to substitute the public interest heading with a more precise set of criteria which would permit a judge to consider detention on more specific criteria. We think that we have accomplished that task and that judges will be able to make informed decisions. What we are proposing is neither too vague nor too imprecise. Obviously the Canadian Bar Association differs.
The Chair: Finally, Recommendation No. 15: They recommend that section 95 be omitted. Their comment about that is interesting. They say this section seems to imply that only a judge of the Court of Appeal might make that decision. Current practice, at least in certain Courts of Appeal or a trial court, may deal with the question. Do you see that limitation inherent in that section?
Mr. Bobiasz: I do not think so. We think that the present situation which exists in jurisdictions as between the Court of Appeal or the trial judges can be maintained. We have tried to make it clear -- and this provision is for the benefit of an accused person -- that we want the criteria which applies to an individual who has been arrested but not tried and who is entitled to the presumption of innocence and the presumption that they should not be detained to be the same in a situation where they have succeeded on an appeal and a new trial has been ordered.
The Chair: There is no reference in the original section 679 (7) of trial.
Mr. Bobiasz: I do not think we have altered the world with respect to the relative responsibilities of the appeal court or the trial court.
The Chair: Thank you.
Senator Corbin: Since we are talking about the Bar, the brief is dated November, 1996. That would lead me to believe that it was presented before the House of Commons.
Mr. Bobiasz: It was.
Senator Corbin: Am I correct in thinking that no amendments were made to the bill in the other place?
Mr. Bobiasz: The Justice and Legal Affairs Committee of the other place reported the bill without amendment. However, while the bill was being debated at the report stage, unanimous consent was obtained from all members to receive two amendments to the bill which would otherwise be out of order, two amendments which were not within the scope of the bill. These are found in clause 107.1 and 139.1.
The first has to do with a proposal to amend a recently enacted provision that came into force in September when Bill C-41, the sentencing reform bill, became law. Since September, there has been a flurry of contradictory jurisprudence over the tests to be used when trial judges consider conditional sentences. Conditional sentences is a new sentencing tool whereby a judge, in appropriate circumstances, once he or she has determined that a sentence of imprisonment of less than two years is warranted, can order that the sentence be served in the community. It is an important provision, and it is a popular. However, across the country, different courts are looking at it in different ways.
It has been troublesome to the government because some courts have held that the only time to consider the fundamental principles of sentencing is when considering whether imprisonment of less than two years is in order. After that, the only issues are whether the sentence should be served in the community and whether that would endanger the safety of the public. The troublesome thing about that is that some individuals have been given conditional sentences for some rather serious matters, and it was felt that the problem is that, at that stage, the judges were not paying enough attention to the basic principles of sentencing.
Clause 107.1 was added after debate, page 47, to indicate that once the court
(b) is satisfied that serving the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2.
That is a reference back to the basic principles of sentencing so that judges must not just apply these basic principles to determine whether imprisonment was in order but also to whether serving the sentence in the community is in order.
Senator Corbin: Does that have to do with sexual offences?
Mr. Bobiasz: In some situations it involves sexual offences. In some situations it involved crimes of violence, and in others serious fraud and property offences. It was inconsistent, and the government felt that the best way to resolve the inconsistency was through an amendment.
The other change is 139.1, and that has to do with another recently enacted piece of legislation, Bill C-45.
The Chair: We are on page 66 of the Bill.
Mr. Bobiasz: The proposed amendment would change Section 8 of that act to make it certain that, at hearings which consider whether a period of parole and ineligibility should be reduced, that the ability of victims to make presentations was permitted.
A provision in Bill C-45 seemed to require or postpone that ability to cases which arise only after the coming into force of that legislation. That was not meant to be the case. It was felt that there was no need to provide for the interim period, but initial interpretations indicated that that might not have been so, so the House unanimously accepted this amendment.
Senator Corbin: There were additions to the bill.
Mr. Bobiasz: Going back to your original question, the Justice and Legal Affairs Committee considered the brief of the Canadian Bar Association, the Quebec Bar, and another witness representing the Ontario Criminal Code review having to do with mental disorders, and they reported the bill without amendment.
Senator Corbin: They did not retain any of the recommendations by the Bar?
Mr. Bobiasz: No.
The Chair: Unfortunately, our witness is being called to the House.
Senator Corbin: I counted seven modifications to the French version. Is the French being corrected or clarified?
Mr. Bobiasz: Yes.
Senator Corbin: Is this consequential to matters of interpretation in court, or is it simply that, in a normal review by the drafters of the French text, they discovered there was a lack of concordance?
Mr. Bobiasz: It is a combination. The people looking at the text, the drafters, felt that there were differences sufficiently important to be sorted out, and representations have been made by governments.
Senator Corbin: Are there any corrections to the standing English Criminal Code?
Mr. Bobiasz: I am not sure if it is in this bill, but either in this one or in Bill C-42 we did the reverse.
Senator Corbin: I continue to raise this matter. I have been doing it for some 28 years. I still cannot understand why we cannot have a proper and correct French text from the beginning.
Mr. Bobiasz: The policy of the department, and I think it is a good one, is to draft independently in both official languages. It used to be, and it was not all that long ago, that one language version was simply the translation of the other. That is probably more accurate in the sense that there are fewer errors, but it does not conform to the government policy of bilingualism and biculturalism. The term "bi-judicialization" was sometimes used. I agree with you that we probably get more differences than we should, but it is as a consequence of this parallel, independent, drafting process.
The Chair: Thank you. Ms Kane, we will be again meeting on Bill C-17 tomorrow afternoon in Room 505, Victoria Building, beginning at 4:00. If you are available at that time, it would be very useful to us.
The committee adjourned.