Proceedings of the Standing Senate Committee on
Legal and
Constitutional Affairs
Issue 61 - Evidence - Afternoon sitting
OTTAWA, Tuesday, April 22, 1997
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-17, to amend the Criminal Code and other Acts, met this day at 4:02 p.m. to give consideration to the bill.
Senator Sharon Carstairs (Chair) in the Chair.
[English]
The Chair: We are continuing our consideration of Bill C-17, an act to amend the Criminal Code and certain other acts. We have two groups of witnesses with us this afternoon, the Criminal Lawyers' Association of Ontario and the Canadian Bar Association.
The Quebec Bar Association was also invited to appear but declined our invitation. These are the only witnesses who have indicated an interest in appearing before the committee.
Mr. Wakefield, would you like to begin.
Mr. Robert Wakefield, Regional Director (Ottawa), Criminal Lawyers' Association of Ontario: Madam Chair, although it is never good to begin with an apology, I am afraid that today I have no choice. I apologize for the fact that the Criminal Lawyers' Association was unable to submit a brief. I am here on behalf of Mr. Durno, who was unable to attend, with only a couple of hours notice. I must confess that I do not have intimate knowledge of the bill. I do, however, have some instructions from the Criminal Lawyers' Association. The things I will say are not necessarily my views but the things they asked me to raise on their behalf.
The Criminal Lawyers' Association has three major concerns. They agree with a great deal of the content of the bill. They think it contains many positive suggestions and many necessary amendments to the Criminal Code which will improve and clarify things. It includes a number of suggestions originally advanced by the Criminal Lawyers' Association. Needless to say, they agree with their own recommendations.
A primary concern is the provision on bail contained in clause 59(2)(c). Subclauses (a) and (b) are very close to the current criteria. The association is concerned about whether the addition of (c) was prompted by any evidence that there were a significant number of cases in which accused persons failed to appear on significant charges.
It is the belief of the association, although not backed by statistical evidence but only anecdotal evidence from the profession, that generally speaking people facing serious charges do appear for their trials and that incidents of failing to appear, contrary to section 145 of the Criminal Code, generally involve accused persons who are socially disorganized, whether through alcohol or mental illness, or persons who are just run down and cannot get themselves together to do anything. They are usually before the courts on minor charges and their failure to appear is more inadvertent than deliberate.
We do not believe there is a significant incidence of people charged with serious crimes neglecting to appear. If that was the evidence before Parliament, the Criminal Lawyers' Association was not aware of it and believes that is the only kind of evidence upon which such an amendment should be based.
The second concern is that the language is very vague and broad and very difficult to define. The notion that an accused can be detained "on any other just cause being shown" does not provide much direction to the justice of the peace or the judge hearing the issue. For many years the basic premise was that accused persons should be released unless there was some compelling reason to detain them. The most compelling reason was that they would not show up for trial and the second reason was that they would commit further offences. The courts seem to have been able to interpret those two criteria adequately and operate in a relatively consistent way with respect to them, but there is concern that the addition of (c) is very broad and does not provide a great deal of guidance for those making those kinds of decisions.
The association believes that this provision would result in an increase in the number of people being detained, which seems to be the purpose of it. If more people are detained, there would be a necessity to speed up trials. We are concerned that there would not be adequate resources in place to conduct those trials on a timely basis.
It is more acceptable for an accused who is out of custody to wait for a year or 18 months for a preliminary hearing and a trial. The justice system, like every other government institution, is cutting back on costs and resources and that will create hardship for those detained under this provision.
The next concern is basically a philosophical one. In our system of justice there is a presumption of innocence. If the state chooses to detain a person pending trial and there is ultimately an acquittal, there is an appearance of unfairness and harshness which may ultimately undermine the general public's confidence in the administration of justice. In other words, if too many people are detained for too long, the public may develop a cynicism about the judicial process that is not healthy and does not contribute to general respect for the law.
I appreciate the argument that when people are released from custody they commit further offences, which also increases public cynicism and does not contribute to respect for law and order. It is a difficult issue to balance.
The Criminal Lawyers' Association feels that sometimes there is an attempt to use the trial process to further punish accused persons, to cause them some inconvenience, in this case a major inconvenience by keeping them in custody prior to a determination of guilt or innocence. The administration of justice should take steps to ensure that the process does not become a punitive one; that penalty and punishment are reserved for after a finding of guilt. There is a concern that this provision would erode that basic principle.
The next concern is with regard to absence of the accused. There are situations in which the accused could be excluded from the process on his consent and situations in which he can be excluded without his consent. I believe the position of the Criminal Lawyers' Association would be that it is prudent to give the judge at the preliminary inquiry the power to conduct the hearing, in his discretion, without the presence of the accused. However, in all circumstances it should be based on the consent of the accused. The accused should not be excluded from any of these processes when he is willing and able to attend. When he asks to be excluded, or consents to a Crown application for exclusion, the judge at the trial or the preliminary inquiry should have the discretion to accommodate him.
The reason for that is fundamental. The entire process is an examination of the accused's conduct, hopefully to make him aware of the fact that his conduct contravenes the law. It is a minute examination of what he did and what will happen to him. He is the central focus of the entire inquiry and it only makes sense that he be present for it and that he not be excluded against his wishes.
I believe it is possible under this legislation that an accused could be sentenced in his absence. The sentencing process after conviction is the major focus of the entire inquiry. It is the matter of most concern to the accused and it would be best, in the interests of justice and in the interests of the accused, that he be physically present in the courtroom at the time the sentence is imposed.
The proposed amendment to section 355(1) would create a new offence of criminal liability by the occupant of a stolen vehicle simply through knowledge that the vehicle is stolen. That is an extension of criminal liability. It is new and different. One must think about the other possible applications for this proposition. This is a significant departure from the law as it is now, which requires knowledge plus some kind of control. It would fix criminal liability on a very low threshold.
One example that was given to me was of parents who learn that their children have been involved in theft. I realize this amendment is restricted to motor vehicles, but this is the first step in an extension of liability for simply knowing what has happened.
I do not know what prompted the Department of Justice to draft this legislation. I asked some prosecutors for their view of it. They believe it was designed to cover a situation where the police know a car is stolen, the teenagers who were occupying it all jump out and run away, and the police are unable to determine who was driving the vehicle. Therefore, they could charge them all in the hope that someone will admit responsibility, but that does not always happen and it is very difficult for the courts, in those circumstances, to say who actually exercised control over the vehicle. As a result, there are often acquittals registered against all the occupants.
If this provision was designed to cover that situation, it may be going too far. It may be taking a major step to solve a minor problem.
Also, imposing a positive obligation to distance yourself from the vehicle as soon as it is feasible to do so does not accord with reality. It may put young offenders in the very difficult position of exercising judgment which they are really not capable of exercising in certain circumstances. It would be nice if they were all model kids who, as soon as they found out that someone had stolen a car, all jumped out at the first stop sign and ran away. However, I do not think that is the way life unfolds.
Those are the comments I was asked to relay on behalf of the Criminal Lawyers' Association.
Senator Jessiman: To deal with that last part, they are not guilty if they do not know the vehicle was stolen. They are only guilty if they know they are in a stolen vehicle. If they cannot get out, they cannot get out, but if they can get out and do not, they are committing a crime. Is there something wrong with that? If they know they are in a stolen vehicle and they stay in it to enjoy the ride or for whatever purpose, should there not be some guilt there?
Mr. Wakefield: There may be some moral responsibility but should there be legal culpability that triggers a jail sentence? All of these offences carry jail as the ultimate sanction and the question is whether that is appropriate for simply not running away.
Senator Jessiman: Not getting out.
Mr. Wakefield: Yes, not getting out.
Senator Jessiman: They do not need to run away from anything. They must get out of the vehicle if they can. If they cannot, they can say, "Look, we were going 80 miles an hour. You cannot expect me to get out."
Mr. Wakefield: Yes, or if it was in a desolate area and it was cold and if they got out they would have nowhere to go.
Senator Jessiman: If that was their reason for not getting out, that would be enough to be found not guilty.
The Chair: You said that the only criterion for a hearing proceeding in the absence of an accused is the accused's consent for that.
Mr. Wakefield: I believe I said that it should be at the discretion of the trial judge.
The Chair: Okay.
Mr. Wakefield: There would be many criteria that he would assess in exercising that discretion in addition to the consent of the accused, but where the accused does not consent, he should be included in the proceedings, unless there is some very compelling reason that I cannot think of at this time to exclude him.
The Chair: Perhaps officials could tell us exactly where those provisions are in the bill.
Mr. Fred Bobiasz, Counsel, Criminal Law Policy Section, Policy Sector, Department of Justice: Madam Chair, I realize the dilemma that Mr. Wakefield is in, having been brought into this at this late stage, but there are no such provisions in this bill. There was one in Bill C-42 to permit an accused person not to be present, but that is at the behest of the accused person. In all fairness to Mr. Wakefield, I am sure the information was miscommunicated to him. I believe the concern is about several provisions that permit remote appearances by accused persons, either by videoconferencing or, for some proceedings, by telephone.
Senator Nolin: That is not this bill. That was in the one we studied last week.
Mr. Bobiasz: No, senator, it is this bill. There are provisions in here that do not excuse the presence of the accused but permit the presence of the accused indirectly, such as by videoconferencing, telephone or other methods of communication.
One example is the amendment to section 515 which deals with appearances for bail matters.
The Chair: That is on page 31 of the bill.
Mr. Bobiasz: There is another amendment to section 537 found at page 33 and another for summary conviction matters found on pages 48 and 49 of the bill.
The Chair: Are you saying that there is nothing in this bill that would deny any accused the opportunity to appear at his own sentencing?
Mr. Bobiasz: There is provision in here for making that appearance by way of videoconferencing, but not for excusing him from the proceedings.
Senator Milne: The consent of the accused is required?
Mr. Bobiasz: In some instances it would be and in some instances it would not, Senator Milne. The provision which goes the furthest is the amendment to section 515(2.2) which makes a distinction for an accused who is only able to appear indirectly by telephone. If that is the only thing that is possible, consent is required.
Senator Milne: The amended subclause (2.3) reads:
The consent of the prosecutor and the accused is required... if the evidence of a witness is to be taken...
Mr. Bobiasz: That is a limitation as well. First, there is no notion of excusing or not permitting the presence of the accused.
The Chair: What we are really dealing with is:
Where, by this Act, the appearance of an accused is required for the purposes of judicial interim release, the appearance shall be by actual physical attendance of the accused but the justice may, subject to subsection (2.3), allow the accused to appear by means of any suitable telecommunication device, including telephone, that is satisfactory to the justice.
Mr. Wakefield, does that change in any way your own feelings about that? I am not asking you now to speak for the Criminal Lawyers' Association but as a practising criminal lawyer.
Mr. Wakefield: According to subsection (2.3) the consent is required only where a witness is to be called, if I understand it correctly. If no witness was being called, the consent of the accused would not be required.
Mr. Bobiasz: I discovered another provision which has to do with a proposed amendment to section 650.
The Chair: I assumed that the purpose of that section was that an accused should have the right to face his accuser.
Mr. Bobiasz: In both cases you are facing your accuser; you are just using a video link to do so. In a rather cautious step, we are trying to permit the courts to deal with routine pre-trial matters without the necessity of transporting detained individuals back and forth. They are still able to deal with the court and face their accusers provided a videoconferencing facility is available.
Senator Gigantès: Is it a matter of costs? Is this what we are talking about?
Mr. Bobiasz: It is a matter of bringing the court system into the modern age, I suppose, and cost is an aspect of it. Security is another aspect. Essentially it is to permit the courts to function the way other institutions do, keeping in mind the need for procedural fairness.
The Chair: Mr. Wakefield, I gather this still causes you a certain discomfort level.
Mr. Wakefield: Yes, and that is because the inquiry is about the accused and his conduct. My personal opinion is that he should be there. I rarely appear for my own clients as agent. I want them there. I want them to be able to provide proper instructions. I want them to see what is happening. I want them to know what the atmosphere is like. There is a big difference between watching an important event on TV and being there. I think the accused must be there. I am not speaking now from a defence point of view, but as a citizen. Other than cost savings, I cannot understand why a prosecutor would not join in the same request.
The Chair: From a different perspective, I think we must bring justice, like everything else, into the modern age. I think of very detailed medical examinations that are now conducted with a doctor in one location and a nurse working with a patient in another location. It is true that it saves costs, but in this case it also provides much better medical care because it enables you to bring specialists to remote communities.
Mr. Wakefield: I am speaking of bringing some lessons to bear on an individual, which I think is done more effectively in person. In your example, I do not think you would compel someone to take that kind of treatment. If they wanted to go to the hospital in Edmonton, they are free to make that choice. I am asking that the accused have the same opportunity.
Having said that, I think that many of them would not want to be there. They would be happy to be excused from attending. They would be delighted not to have to sit there and listen, but I think they should be there.
Senator Nolin: I have a question on clause 46 of the bill which deals with extended power to police agents where no warrants are necessary. I am concerned by this clause which amends section 487.1 of the act.
Could you give us some examples of the necessity for that? Even though I have great confidence in the police, my concern is that at some point they will be a little bit less concerned about the elements required to get a warrant and will decide to act without a warrant because the situation is urgent. On what grounds did you decide to introduce that amendment?
Mr. Bobiasz: I am not sure whether you want the examples or the explanation in terms of what we said yesterday.
Senator Nolin: The examples.
[Translation]
Mr. Bobiasz: For the most part, exigent circumstances apply to situations were, if no action is taken, there is a real possibility that evidence will be either destroyed or lost. Exigent circumstances also exist when there is a possibility that a person may be in danger. Quite frequently, this happens when a person is arrested in a vehicle. When the police officer speaks to the driver, he may have reasonable grounds to believe that the vehicle contains relevant evidence.
If the police officer does not move to take immediate action, the likelihood is great that the automobile will disappear. That is one example of exigent circumstances. Another situation we frequently encounter is when a police officer has reason to believe that a person is concealing narcotics on his person or in a particular location. If the police wait to obtain a warrant, the narcotics or substances will also disappear.
Senator Nolin: I understand, but the Code already gives police officers certain powers to act without a warrant when they have reasonable grounds to believe that a criminal offence will be or is in the process of being committed. These powers already exist.
Mr. Bobiasz: Not with respect to searches.
Senator Nolin: Not for searches, but as section 487.11 is now worded, police officers may exercise all of the powers provided for in the legislation, among other things, the power to carry out searches.
Mr. Bobiasz: The powers with respect to searches are described in section 487.1 and in section 482.1.
Senator Nolin: I agree that they can arrest a person without a warrant. However, they could not conduct a search.
Mr. Bobiasz: Another important development which justifies the need for this provision is the recent adoption by Parliament of Bill C-8, the revised Narcotic Control Act. Perhaps you did not consider one aspect of this legislation. A change was made to include a provision similar to this in the legislation.
Senator Nolin: We did indeed voice similar concerns at the time.
Mr. Bobiasz: Since provision for this has been included in the new Narcotic Control Act, we felt is was necessary to do the same in the Criminal Code.
It will be argued before the courts that if this is not in the Criminal Code, this means that Parliament does not want police officers to act in exigent circumstances, although the precedent has already been set.
Senator Nolin: Nevertheless, if the police officer's search was productive and resulted in the seizure of a number of items, the courts will question a posteriori the circumstances which lead the police officer to decide to carry out a search and they will consider if all of the elements required to obtain a proper warrant were present when this decision was made.
Mr. Bobiasz: Not only will they consider if all of the elements required for a warrant were present, but they will also look at whether exigent circumstances were present. Quite often, but more so in the American justice system than in the Canadian one, the contention is made that police officers fabricate circumstances in order to create a sense of urgency. If no exigent circumstances are found to exist, the search is declared null and void. In some instances, it is the sense of urgency itself that is contrived. For example, if the police have grounds to believe that a warrant is necessary and then wait until the last minute to say: "We do not have enough time to obtain a warrant", then they invalidate the search by virtue of their actions.
Senator Beaudoin: In other words, if an exceptional opportunity presents itself, it may be worth the risk of not waiting to obtain a warrant. Evidence could be lost if no immediate action is taken.
Mr. Bobiasz: That is correct. There are cases, albeit this happens only infrequently, where sometimes a person's life is in danger or where perhaps there is some indication that a person has been kidnapped. The circumstances in both cases are considered to be exigent.
[English]
The Chair: Mr. Bobiasz, I wish to make a suggestion. When the policy sector prepares other substantive pieces of legislation, it would extremely helpful if the senators were presented with what currently exists, what the changes are to be, and an explanation for those changes. In dealing with both Bill C-55 and Bill C-17 confusion has arisen and unless you have the Criminal Code next to you, you are sometimes unsure of what is being presented.
Please take that suggestion back to your sector.
Mr. Bobiasz: I will certainly do that, Senator Carstairs. However, this is a matter that is beyond criminal law policy. The production of bills is done centrally through the legislative section, so I suspect that what you are presented with is the same as your colleagues in other committees are presented with on other legislation. It is not just a matter for a particular policy sector of the government.
The Chair: In the province of Manitoba, when we are given a very detailed piece of legislation such as Bill C-17, the department prepares for the members of the legislature a supplement to the legislation which does exactly what I suggested to you would be very handy.
Mr. Bobiasz: I do not doubt that. My point is that much of what happens is beyond our control.
As well, this bill, as it has been reprinted for the Senate, is much less informative than the bill which was tabled. I am not sure whether there were explanatory notes for Bill C-17, but one of the ways you can understand a bill is to know what is being added to existing sections. That is usually done through the process of red lining. Much of what is in this document is not new.
Senator Nolin: Exactly. It is only one or two words.
Mr. Bobiasz:Yes. Indeed, some entire sections are just repeated from the code and are necessary only for the structural changes. For reasons that I do not understand, all of that stuff was eliminated in this version.
The Chair: We will look into that.
Senator Nolin: On that point, I think the department can produce a companion document for use by parliamentarians. It does not need to be in the bill. You probably already use such a document internally in the department and it would be very helpful.
Mr. Bobiasz: I would be prepared to meet informally with you and show you what we have internally.
The Chair: I look forward to that.
Mr. Bobiasz: This is a document prepared to allow the minister to work the legislation through the system.
Senator Nolin: I am sure we will understand what is in it.
Mr. Bobiasz: It has the answers to many questions.
The Chair: Honourable senators, I will now ask our witnesses from the Canadian Bar Association to join us at the table.
[Translation]
Ms Tamra Thomson, Director, Legislation and Law Reform, Canadian Bar Association: Madam Chair, the Canadian Bar Association is pleased to present its views on Bill C-17 to the committee today.
The Canadian Bar Association is a national association representing over 45,000 jurists across Canada. The association's primary objectives include improvement in the law and in the administration of justice. It is with this in mind that we have analysed the bill and that we present our comments to you today.
You have before you our submission which was prepared by the National Criminal Justice Section. The section's membership is comprised of both Crown and defence counsel.
[English]
With me today is Mr. Bart Rosborough, senior Crown counsel with the Alberta Department of Justice and secretary-treasurer of the Criminal Justice Section. I will ask Mr. Rosborough to address the substantive matters in our brief and then we will be pleased to answer your questions.
Mr. Barton Rosborough, Secretary-Treasurer, National Criminal Justice Section, Canadian Bar Association: It is an honour for me to be present at this committee today to provide you with what information the Canadian Bar Association can in relation to Bill C-17. The Canadian Bar Association prepared and submitted a written response to the series of proposed amendments to the Criminal Code collected in what is now Bill C-17. That submission was prepared in November of 1996 and remains the position of the Canadian Bar Association. At that time we were unable to address the provision now contained in the bill as clause 107.1, but would be pleased to respond to that provision now.
The brief of the Canadian Bar Association makes a series of 15 recommendations which you will see conveniently summarized at pages 22 and 23. I intend to preface my specific comments with three general observations relevant to the contents of Bill C-17.
First, the Canadian Bar Association endorses omnibus bills such as Bill C-17 as being a particularly effective vehicle for improving the administration of criminal justice. Many of the proposals contained in this and other omnibus bills have arisen from the work of consultative bodies, such as the Uniform Law Conference, in whose work the Canadian Bar Association has participated. In addition, certain amendments, such as that found in clause 32 of this bill, were actually proposals put forward by the Canadian Bar Association. Incremental change to existing Criminal Code provisions generally serves to improve or fine tune them in order to ensure their balance and efficacy. We support the Government of Canada's continuing use of the omnibus bill for these reasons.
Having said that, it is the view of the Canadian Bar Association that some of the provisions in this bill extend well beyond those contours. Clause 28(1) of this bill, for instance, criminalizes an otherwise innocent act as long as the perpetrator "believes" the act to be illegal. Clause 15 of this bill makes it a crime to be present when another commits what is now an offence, even if the person who is merely present does nothing to aid, abet or otherwise participate in the crime. It creates a duty to flee from the criminal, a rather novel concept in Canadian criminal law.
Finally, Bill C-17 properly addresses aspects of the criminal law needing amendment but does so without the requisite degree of balance. For example, several sections of this bill afford peace officers and their agents immunity from prosecution where bona fide investigations require them to participate in what would otherwise be criminal conduct. However, there are inadequate statutory limitations on these grants of immunity, especially in circumstances where disreputable or unsavoury "police agents" are utilized during the types of investigations referred to here.
Another illustration of that lack of balance in our submission is evident in clause 45 of Bill C-17. Enforcement agencies will receive needed assistance in obtaining identification evidence during the course of their investigations. However, Bill C-17 contains no requirement for the police to first believe that the person to be subjected to an intrusive physical search has committed a crime. It makes no provision for the presence of specialized medical personnel to guard that person from injury or unnecessary pain or suffering as a result of these new police powers.
Accordingly, while the Canadian Bar Association endorses the omnibus bill approach to criminal law reform, we have serious reservations about many of the provisions of Bill C-17. It appears to introduce new concepts to Canadian criminal law. It also fails to inject those and other provisions with balancing provisions which would otherwise safeguard the liberty and security interests of Canadians.
I intend now to address some specific provisions in this bill and provide you with some practical illustrations of where this bill may lead to the implication of otherwise innocent conduct. I reiterate that all of our recommendations are summarized at pages 22 and 23 of our submission and I would be pleased to respond to any one of those.
The first of the provisions I intend to address is what I call the illegal occupant provision. As I said in my preliminary comment, it appears not to conform to the usual type of provision found in an omnibus bill. Let me highlight its dangers by reference to a common but hypothetical situation. This is the provision which makes it a crime to be an occupant in a motor vehicle, knowing that vehicle to have been stolen. I would like to provide a practical illustration which may shed some light on the potential breadth of the liability created by this provision.
Young offender A elects to go joy riding with his girlfriend. She knows that the vehicle is stolen and in fact encourages him in the use of it to drive her to the mall. En route, she asks if he would mind picking up two of her girlfriends and take them to the mall as well. He agrees to do so. The friends sit in the rear of the vehicle driven by the young offender with his girlfriend sitting in the front seat. En route, they encounter the police. The police query the licence plate number on the vehicle, identify it as having been stolen and initiate a chase.
The young offender driving the vehicle speeds off. The girls in the rear seat scream and he turns around and tells them to shut up. During the course of the chase, he is forced to stop for approximately 30 seconds due to oncoming traffic. He then continues and eventually either the vehicle is stopped by the police or a collision which forces them to stop. Police can and will arrest all four occupants of that vehicle; the young offender, his girlfriend and the two occupants in the rear seat who are frightened of the male offender as a result of his conduct earlier and will not talk to the police, especially in his presence. However, the young offender elects to inform on his girlfriend, telling the police that she encouraged him or abetted him in the use of the motor vehicle in order to drive her to the mall.
Where does that leave us? First, all four of those people will be charged with an offence; either the offence of joy riding or of being an occupant in the motor vehicle knowing it to have been stolen. The girls, of course, as soon as they hear the police, will know that the vehicle has been stolen and they will be charged with the responsibility that that knowledge gives.
The accused and his girlfriend can, will and should be convicted of the offence; his girlfriend, either through the constructive possession provision, which is in section 4(3) of the Criminal Code, or by virtue of the fact that she has abetted him in the use of the motor vehicle to drive her to the mall.
What about the two innocent girls in the back seat? They too will be convicted under this provision. They will be occupants in a vehicle. They know that it is stolen.
The Chair: How do they know that it is stolen just because they are being chased by the police?
Senator Jessiman: Let us even assume they were told that. Do you think 30 seconds is enough time for them to get out? It says to the extent that it was feasible. Under those circumstances, I do not think they would be found guilty.
Mr. Rosborough: From my experience in prosecuting, I can tell you that it becomes largely a question of fact to be resolved by the trier of fact. In that case, if the trier of fact makes a finding of fact that there was sufficient time, reasonable in the circumstances -- they were in the back seat, they were not under the young offender's control, 30 seconds in the context of a high speed chase is a long time -- that would be a reasonable finding of fact which the accused, on appeal, would be unlikely to be able to overturn as being an unreasonable verdict.
Senator Jessiman: It depends on whether they were right by the curb or somewhere that they might have gotten out, or if they were in the centre lane with cars on either side of them.
Senator Milne: Is your concern about clause 15 not covered by section 335 (1.1) which says:
Subsection (1) does not apply to an occupant of a motor vehicle or vessel who, on becoming aware that it was taken without the consent of the owner, attempted to leave the motor vehicle or vessel, to the extent that it was feasible to do so...
Mr. Rosborough: That is what has been crafted as a saving provision to this. With the greatest of respect, in the circumstances that I described, the passengers were not prevented from exiting the vehicle when it was stationary for a period of 30 seconds.
Senator Milne: If it was not feasible for them to leave it, they will not be charged.
Mr. Rosborough: As a matter of practicality, it would take about five seconds to get out of the vehicle. Whether they make the election to do so and whether it is safe to do so are questions of fact driven by the circumstances of the individual case. If a conviction were entered in these circumstances on a finding of fact by the trial judge, it would be very difficult to have that finding overturned on appellate review.
Senator Milne: I would think they would not be charged in the first place.
Mr. Rosborough: The second illustration I want to refer to is what I characterize as the corrupt police agent. Bill C-17 exempts from specified criminal liability all police officers, or peace officers, and their agents, the only safeguard in that respect being that the peace officer be engaged in the execution of her or his duty at the time the otherwise criminal conduct, notably laundering the proceeds of crime, takes place.
I do not think it is beyond the ken perhaps even of judicial notice that agents employed by the police in this context are often of the most unsavoury or disreputable character. Usually they have long criminal records and other blemishes on their character.
The argument is often made that in order for the police to involve themselves with that element of society they need to engage these individuals, but in our submission, with respect, Parliament ought to be wary about granting these people immunity from prosecution with the very simple safeguard of requiring the police or the peace officer to be engaged in the lawful execution of his or her duty. In our submission, there should be safeguards in addition to that which require the police not to engage in activity which might amount to either entrapment or an abuse of process. In the alternative, the section should be crafted in such a fashion as to prevent disreputable or unsavoury police agents from being granted immunity from prosecution for the substantive offence in this regard.
Bill C-17 also contains amendments to the proceeds of crime provisions which, in our respectful submission, actually create a new form of criminal liability. Pursuant to this legislation, it is a crime to believe that you are laundering proceeds of crime even though you are not. If this is the intention of the bill, it is our submission that it is a departure from accepted standards of liability.
As you will see from our brief, there may be some confusion as to exactly the scope that was meant to be covered by this provision. I am not sure that it was intended to cover this particular provision, although I know of certain enforcement techniques which may rely on this type of provision in order not to implicate the police. It is quite a departure from existing criminal law.
In addition to these provisions, the bill also creates a number of hybrid or absolute jurisdiction offences. Like the other provisions which I have addressed, they are a mixed blessing. They expedite the trial process and widen the range of available dispositions open for people charged with, for instance, summary conviction offences in this context. However, it should also be noted that by increasing the number of hybrid offences by creating absolute jurisdiction offences you truncate or eliminate an accused person's right to preliminary inquiry and their right to be tried by a jury.
I think caution should be exercised in that regard, especially, and our brief reinforces the fact that an accused person's right to counsel in the context of dwindling Legal Aid resources will be affected by these provisions. If I, as Crown counsel, elect to proceed summarily on these offences, it is entirely likely that the accused person would not be granted Legal Aid.
In addition, you will note that the offence of break and enter into commercial premises is one of the provisions caught by this and in fact can be prosecuted by summary conviction. I query whether this is in the best interests of the community.
Our brief addresses a number of provisions such as that contained in clauses 3(2), 51 and 52. These provisions of the bill expand police powers to set conditions of release on undertakings. These provisions generally are in the interests of both the state and the subject. However, it should also be noted that the provision authorizes prosecution for breach of conditions restricting the subject's liberty interests without any judicial review of those conditions. In other words, a condition set by a police officer which is breached by a person without any judicial scrutiny can be the subject of prosecution thereafter. Our submission is very simple. It would be elementary to add a minor judicial ratification procedure to this.
Those are the substantive comments that I want to make. As you can see from our brief, we made a total of 15 recommendations addressing a variety of positions in this very compendious bill. I would be pleased to answer any questions you may have in relation to either the brief or my comments today.
Senator Gigantès: You said that you feel some unease that someone who thinks he is laundering the proceeds of crime may in effect not be doing so.
Mr. Rosborough: Yes.
Senator Gigantès: What happens with the concept of intent in what you are saying? Intent seems to be fairly central to criminal law.
Mr. Rosborough: It does indeed, and I guess this bill creates a crime of mens rea without an actus reus. There is an intention; there is no act. The actual goods which are dealt with by the individual believing them to be proceeds of crime are not proceeds of crime. This bill criminalizes that.
Senator Gigantès: The definition of a lie is saying something, believing that it is false, although it may be true.
Mr. Rosborough: All right.
Senator Gigantès: You may be telling the truth, but you are lying if you think that what you are saying is not the truth and you are trying to mislead someone. This is parallel to that.
Mr. Rosborough: That is an interesting analogy. The response must be that it is an unusual provision because basically it is making a crime out of the impossible. If the individual did not have that belief, his or her conduct in relation to that, described in this bill as conversion or trafficking, would be completely innocent, but upon creating the mental element you attract criminal liability. While that is a valid policy orientation, it is an unusual policy orientation and I do not think you see it reflected in many provisions of the Criminal Code. Our response is that it is unusual to contain that in an omnibus bill.
Senator Gigantès: I am a little confused. You are using the word "valid", saying that might be a valid orientation. Nevertheless, it should not be included in an omnibus bill. Explain that to me.
Mr. Rosborough: Parliament can criminalize thought crimes. There is no doubt about it. That is a policy orientation that it can take, constitutionally unobjectionable. Our submission is, first, that it should not find its way through the process in a omnibus bill. Second, from the perspective of the bar, it is not the type of crime that should be proliferated, especially in this context.
Senator Milne: I am a little confused about this too because you say that if you think you are money laundering, you are guilty, but if you think you are riding in the back seat of a stolen car, you are not guilty.
Mr. Rosborough: If you are riding in the back seat of the car and you know nothing about the vehicle until the chase crops up, and then you do not flee in time, you attract criminal liability.
Senator Jessiman: In your brief you said, "would capture those who mistakenly believe they possess stolen money".
Mr. Rosborough: Yes.
Senator Jessiman: Is it really the possession? Could the police not themselves take some stolen money and use that? It is still stolen money.
Mr. Rosborough: Absolutely.
Senator Jessiman: They could use that kind of money and they would be all right?
Mr. Rosborough: Absolutely.
Senator Jessiman: Then that is what they must do; use the stolen money.
Mr. Rosborough: Of course they attract immunity under other provisions in this legislation when they do so, senator. Your point is quite apropos. If they use the proceeds of crime, they have immunity because they are in the execution of their duty investigating this serious offence. They also have an actus reus because it is the proceeds of crime.
Senator Jessiman: It should not prove very difficult for the Crown to do that. They should be able to find a lot of stolen money.
Mr. Rosborough: Absolutely.
Senator Beaudoin: Yesterday we raised with Mr. Bobiasz exactly the point you referred to of whether this bill is creating a mens rea.
Senator Jessiman: There is mens rea.
Senator Beaudoin: Of course there is mens rea.
Senator Jessiman: There is mens rea but there is not the act of stealing. It is not stolen.
Senator Beaudoin: This bill does not create a mens rea. You look at the person, you look at the facts, and you determine whether the person is of the opinion and has reasonable grounds to believe that this may take place. Certainly that person knows something about it, so I do not understand why you come to the conclusion that this act is creating a mens rea.
Mr. Rosborough: Our principal comment was not that it is creating a mens rea but that it is criminalizing a crime which only has mens rea. We do not have an actus reus here. We do not have the physical act of laundering the proceeds of crime because, quite simply, they are not the proceeds of crime. He believes they are, but they are not. His belief in that regard creates the crime.
Senator Beaudoin: Apply that now to clause 48. In your recommendation number 10 you recommend that clause 48 be amended so that a second warrant may be obtained before objects related to the original warrant are seized.
Mr. Bobiasz has an answer to that. He says that the facts are of such a nature that you have reason to believe that there is something there and we give the police the possibility of seizing something. I do not see anything wrong with that. Why do you want a second warrant?
Mr. Rosborough: There is already a doctrine whereby the police, in the lawful execution of their duty, can seize goods in plain view which are criminal by nature. Let us use the example of narcotics. However, you do not see the words "plain view" in Bill C-17, and the immediate question that springs to mind is, "Why not?"
Our submission is that the police may abuse this provision. In other words, the provision only refers to a warrant. They can use an arrest warrant procedure to conduct a search.
Senator Beaudoin: I would like to have the opinion of Mr. Bobiasz on this.
The Chair: We will bring Mr. Bobiasz back, Senator Beaudoin.
Senator Gigantès: We heard in other testimony on the same issue that if there is, in a car that the police have stopped because it is speeding or because they suspect the driver of being drunk, a piece of electronic equipment in the back seat with the serial number which would identify it as a stolen piece of property on the bottom, and they turn it over to see the serial number, then they have broken the plain view aspect. It is not in plain view, therefore they cannot look at it. Is that right?
Mr. Rosborough: We have not addressed that in the brief, senator. I would need to review the provision to be able to comment on that. To answer your question directly though on the merits, on the law, that is not in plain view.
Senator Gigantès: That is the sort of thing that would be hard to explain to the citizenry.
Senator Beaudoin: Your recommendation number 9 is related to plain view.
Mr. Rosborough: Yes.
Senator Beaudoin: Your recommendation 10 is related to a second warrant.
Mr. Rosborough: Right.
Senator Beaudoin: Both relate to clause 48.
Mr. Rosborough: Yes.
Senator Beaudoin: This obviously is a central part of your recommendations.
Mr. Rosborough: It is consistent with those recommendations, yes.
Senator Beaudoin: The distinction may be slight, but still it is there. According to certain circumstances, it is reasonable not to obtain a second warrant because the evidence will disappear.
Mr. Rosborough: Yes, although they do have the initial warrant. The Canadian Bar Association does not want to see these provisions used as a way to search premises -- the type of plain view thing we are talking about here -- in order to conduct what would otherwise be unauthorized searches, using simply another type of warrant provision. If the police do not have grounds to believe there is evidence in a place, we do not want them to be able to get an arrest warrant which would enable them to snoop around and pick up stuff, thereby conducting a search without a warrant.
Our position is that if they want to conduct a search, they should get a search warrant. If they do not, they can seize those items in plain view. If they want to extend beyond that, they should get the warrant currently required by law.
Senator Milne: However, those parts of the law are not removed by these amendments to the act. They still apply.
Senator Beaudoin: The applicable principles of law remain.
Mr. Rosborough: Yes.
Senator Beaudoin: Do you think that what is added by this bill in clause 48 is against the Charter of Rights and Freedoms?
Mr. Rosborough: Much will be driven by the facts of particular situations, but if the police utilize this provision as a vehicle to enter a private dwelling house, arrest the individual and then conduct a search in circumstances where they otherwise would not be authorized to do so, it may well violate section 8 of the Charter.
Senator Beaudoin: I respect that, of course. That is one point of view, but you base that on violation of the Charter. We are concerned with legality and constitutionality. If it is just a question of opinion, opinions will vary. We have the bill before us and we must determine whether it is in compliance with the Charter. I think it is, but you are an expert and you say that it may very well be against the Charter of Rights and Freedoms.
Mr. Rosborough: This provision would overcome the first hurdle of an analysis of section 8 of the Charter. This is a search authorized by law but, as you know, senator, the second and third stages of that inquiry require that the law itself be reasonable.
Senator Beaudoin: Yes.
Mr. Rosborough: It may well be that the over-breadth that we fear in this law will render it constitutionally infirm.
Senator Beaudoin: You do not think it is reasonable?
Mr. Rosborough: No, we see it as too expansive.
Senator Beaudoin: The extension is too broad?
Mr. Rosborough: Exactly.
The Chair: Mr. Rosborough, I could understand if the word "search" were in section 489, but it is not. The word used is "seize" not "search."
Mr. Rosborough: I understand that.
Senator Nolin: To seize they search. That is what they are saying.
Mr. Rosborough: That is a very astute comment. We do not mind the seizure of what is in plain view. What we do not want is the search that will go along with it, and the search is often the real reason you get into the private dwelling house to begin with, followed by the seizure and the arrest thereafter. That is our quarrel with this provision.
Senator Jessiman: The police can currently seize particular things set out in the warrant?
Mr. Rosborough: Yes.
Senator Jessiman: They say anything that person believes, then they say all the other things they can also seize.
Mr. Rosborough: Yes.
Senator Jessiman: So you are saying that this is extending that from seizure to searching for them.
Mr. Rosborough: Yes.
Senator Gigantès: If you are seizing things in plain view, are you searching? Someone said as an example that you do not look into a cupboard to find an elephant. The answer to that is if the cupboard is large enough and the elephant is small enough.
The Chair: You do not have the right to go into the trunk of the car?
Mr. Rosborough: Right.
The Chair: What gives you concern is that this provision would allow the police to go into the trunk of the car?
Mr. Rosborough: The whole nub of our submission is very simple. If they put in this statutory provision that you can only seize articles which would otherwise be in plain view, it would be fine, but, as the senator pointed out before, once you are in there snooping around, the breadth of this now makes the application for a search warrant unnecessary. You do not need a search warrant now because you are searching the premises willy-nilly and in our submission the safeguards that are put on the acquisition of a search warrant in the first place are the important thing. There is no need to codify the doctrine of plain view, but if you want to codify the doctrine of plain view, why do you not use the words "plain view"?
The Chair: In my view, the very fact that they have used the word "seize" and not "search" is just that.
Senator Pearson: My understanding is that it was only "seize" and not "search". They can search for the things that are listed on the warrant but if, in the course of that search, they see a loaded gun or something, I presume they can seize that.
Senator Gigantès: They can seize the things that are on their warrant.
Senator Jessiman: With regard to your first recommendation, the government tells us that it would be unworkable to have to go back to the judge each time to get confirmation.
Mr. Rosborough: In recommendation number 1 we are saying that this is almost tantamount to a fiat to prosecute. In other words, if a condition is set unreasonably by the peace officer and it is breached by the accused, the person who is otherwise released, a judicial officer might not ratify this particular condition of an undertaking, which would then bring about the prosecution. However, the ratification is ex post facto.
As an example, in an offence that had nothing to do with liquor the police may make it a condition of release that a person cannot have any booze. The person would probably comply with that condition in order to be released.
If the person consumes liquor, he is in breach of the condition, but a judicial officer might say that was an unreasonable condition to begin with and will not be prosecute it. It is an after-the-fact ratification that we are talking about. Basically it is a signature.
Senator Milne: Your recommendation 14 is that the subject of costs in criminal matters be considered within a comprehensive and socially balanced context rather than by asking courts to create their own principles on a case-by-case basis. In other words, you are recommending that there be some sort of parameters set. Is it appropriate for the government to set parameters for costs?
Mr. Rosborough: I think the government should, and I think it should be done on a comprehensive basis.
We see the proliferation of cost-type things in the context of Charter litigation now, specifically in disclosure-related matters. For example, the prosecutor's brief may not happen to have a copy of the qualified technician's check sheet, through administrative error or otherwise. The defence lawyer will write to request a copy of the check sheet. The check sheet is inadvertently not sent and costs are awarded. There are thousands of these prosecutions every year.
Because of that incremental growth, we submit that this is not a provision for an omnibus bill.
Senator Milne: Is there an example of where the government does set parameters for costs in court cases?
Mr. Rosborough: This goes somewhat beyond my area of expertise because it involves civil proceedings, but yes, it does. Rules of court quite often constrain awards of costs and have some fairly comprehensive rules.
Senator Milne: Is this something that is written into the Criminal Code?
Mr. Rosborough: Yes, it is.
Senator Nolin: Clause 6 amends section 175(2) dealing with evidence of peace officers. The declaration of a peace officer will be sufficient to convict someone of loitering and obstructing justice.
Mr. Rosborough: Yes.
Senator Nolin: Can you give us an example of that, please?
Mr. Rosborough: Our fear is that the term "loitering" is ambiguous.
Senator Nolin: It is already in the Criminal Code.
Mr. Rosborough: I understand that.
Senator Nolin: It is the level of evidence required that changes.
Mr. Rosborough: Exactly. We fear, which is why we have taken issue with this provision, that it can be used by police officers to expand their powers of arrest, in essence. Remember that any time a peace officer finds an individual committing a summary conviction offence, they have the power of arrest. The peace officer now infers that a disturbance is caused -- ascertained or not according to the terms of the legislation -- and has a power of arrest in those circumstances and can intervene in the proceedings. We see that as a negative development in the criminal law, and there is case law to cover this already.
Senator Nolin: The only thing the officer must do is make a declaration. He needs no more evidence of that actus reus than his declaration.
Mr. Rosborough: Exactly. There need be no proof of obstruction or no proof of an actual disturbance. The court simply draws an inference based on the police officer's testimony of whether he ascertains or apprehends that.
Senator Nolin: I do not think there is anything we can do about that at this time.
The Chair: Thank you both, Mr. Rosborough and Ms Thomson, for your presentation this afternoon.
Mr. Bobiasz, I will begin with the amendment to section 175(2) with regard to the evidence of a peace officer. You explained yesterday that this had come about as a request from many municipality groups across the country.
Mr. Bobiasz: That is correct, Senator Carstairs. The source was a recommendation from the Federation of Canadian Municipalities. Its aim is simply to avoid the need to bring in witnesses other than the peace officer to testify to an obstruction. I do not think that the mere fact that the police officer testifies to the obstruction is necessarily sufficient. The trier of the facts must be satisfied that there was in fact an obstruction.
Having said that, after the meeting yesterday I carefully looked at the CBA's original submission and I believe that the problem they have with that provision is that they do not like the offence. The offence of loitering and obstructing is a marginal offence in the eyes of many.
Senator Nolin: It is already there.
Mr. Bobiasz: It is there and we are not doing much to it. Indeed, the addition to it might not be apparent because of the point I made before about what is presently in the Criminal Code and what is not. This only extends it to subsection (c).
Currently, a peace officer can testify to the other varieties of this offence; that is, loitering in a public place and whatever subsections (a) and (b) deal with, and I am not aware of any problems arising from this. This just deals with another aspect of that so I do not see it as a dramatic extension. It is certainly not an extension of liability. It is just, as I indicated yesterday, meant to clarify that a peace officer who is witness to the obstruction can testify to that and, unless there is evidence to the contrary, that could be sufficient.
Senator Beaudoin: I would like to have your view again, Mr. Bobiasz, on clause 48 dealing with plain view and the second warrant. You dealt with that point yesterday. Now we have heard an expert on this and I would like to know your reaction to that.
Mr. Bobiasz: My reaction is the same as it was yesterday. I would refer to the remarks of Senator Carstairs on this. What is provided for here is a seizure. In no way, shape or form do these amendments authorize a search.
Senator Beaudoin: Yes.
Mr. Bobiasz: If an arrest warrant was obtained to get into premises for an oblique motive, that might be improper in and of itself but that arrest warrant would not authorize a search and, if a search were conducted, that is what would be against the Charter. The only thing we are authorizing here is a seizure.
Using the words "plain view" might be enough to send a signal to lawyers that this is what we are talking about but, quite candidly, I do not think we need to do that. I do not think we need to use words that are found primarily in American case law and American doctrine to capture a concept which presently exists in the Criminal Code under the present elements of section 489. We are simply extending it to different categories of seizable material. To say that in order for this to be properly appreciated in the legal world we must use the words "plain view" is, with respect, really not necessary.
Having said all that, it should be comforting to the Canadian Bar Association that we have had this discussion because it will be on the record that what is meant by Parliament, should this provision be adopted, is a codification of the plain view doctrine.
Senator Beaudoin: In any case, it is good to have a discussion on that point and it will be in the record.
Mr. Bobiasz: With respect, as well, what seems to be behind the concerns is that permitting this would make it easier for dishonest police officers to perform dishonestly. That seems to be the argument and the theme. It is my view that if we are dealing with police officers who are prepared to behave dishonestly, they do not need this. They will do it anyway. I do not think that this says much either way on that issue.
Senator Gigantès: I am still worried about the amendment to section 175. I know a young prosecutor who is practicing for the federal government in Quebec, who is a Quebec nationalist, who says that Quebec police officers "sont trop cowboys". Those are the ones he encounters. He does not practice anywhere else. He says that as far as he can make out there is a multitude of these police officers who, under section 175, really stretch it. He says that happily the judges just do not believe them most of the time. This seems to give the police too much.
Mr. Bobiasz: With respect, Senator Gigantès, this exists now. If the police want to abuse their authority and take advantage of a provision, they can already do that.
Senator Jessiman: It is possible for the court not to accept their evidence.
Mr. Bobiasz: Of course. Senator Gigantès' point may be that the police are relying on this provision, although I do not know how, to somehow override the rights of individuals. I cannot see, in any way, shape or form, how the addition of this provision would change that. If they are prepared to violate the law, to push the law, to exceed the limits of the law, this will hardly change the margin.
Having said that, it may very well be that there is improper police behaviour in some jurisdictions. I am not here to speak to that but the proper remedy for that is for the authorities within that jurisdiction to take control over those that they are responsible to administer. Indeed, in the province of Quebec they recently formed a commission to look at some aspects of the Sûreté du Québec. It may be that some of the "cowboy" incidents to which reference was made might be part and parcel of that, but it is not the Criminal Code that leads to that.
Senator Jessiman: It says "may". It is permissive. It does not say "shall".
Mr. Bobiasz: It certainly is, Senator Jessiman. I am quite surprised at the amount of attention given to this because it is hardly a bold step.
[Translation]
Senator Nolin: I have looked closely at section 175 and when I compare the French version to the English one -- I understand that the two versions were drafted by separate teams -- it would appear to me that the level of proof required is different in each version.
Secondly, the English version is more specific than the French one. The last four lines of that version read as follows:
[English]
...that a disturbance described in paragraph (1)(a) or (d) or an obstruction described in paragraph (1)(c) was caused or occurred.
If you look at the French version, we are talking about...
[Translation]
...la survenance d'un désordre visé aux alinéas (1)(a), (c) ou (d).
The word désordre in the French version of sub-section 175(2) is used in the generic sense. It does not refer to anything specific, as is the case in the English version. Perhaps I am nit-picking, but why was this particular wording used?
Mr. Bobiasz: I can take responsibility for what is contained in the bill, but not for what is already in the legislation. We are not amending existing sections.
[English]
Senator Nolin: I know, but if you read the actual paragraph (2), it already refers to a disturbance described in paragraph 1(a) or (d) having been caused or having occurred. With the bill we are adding, "or an obstruction described in paragraph 1(c)", and we do not have it in French. In French we are using the word «désordre» as a very generic word. The meaning of "désordre" is very large. If you look at the actus reus of 1(c), in French you have --
[Translation]
... flâne dans un endroit public et de quelque façon gêne des personnes qui s'y trouvent.
The French version uses the words "flâne" and "gêné". Does the word "désordre" used in paragraph 2 of the French version refer to these two activities, given that in the English version, the reference in the second part is to an obstruction.
[English]
Are you following me?
Mr. Bobiasz: I am following you. I apologize for not having my French code with me, but I believe that those provisions are presently there. The only thing we did was make the necessary adjustment to reference to paragraph (d). The drafters looked at the substantive provision and found that the appropriate reference in the act covers the situation, whereas in English, given the definitions of the three kinds of behaviours, they felt that they had to delineate them.
Senator Nolin: Okay. Disturbance and destruction, that is behaviour.
[Translation]
If we look at how the word disturbance is described in paragraph 1, it appears clearer in the current English version of the act than in the French version.
With the addition of paragraph (c) by way of this bill, we end up with an English version that is more specific than the French one.
Mr. Bobiasz: Could I have a copy of the French version of paragraph (c)?
[English]
The Chair: I think it might be useful to know that section 171(1) of the Criminal Code states:
Everyone who
(a) not being in a dwelling-house, causes a disturbance in or near a public place,
(ii) by fighting, screaming, shouting, swearing, singing, or using insulting or obscene language,
(iii) by being drunk, or
(iii) by impeding or molesting other persons,
(c) loiters in a public place and in any way obstructs persons who are in that place, or
(d) disturbs the peace and quiet of the occupants of a dwelling-house by discharging firearms or by other disorderly conduct...
At the present time, offences under (a) and (d) can be attested to by the police officer. It is only (c) that cannot be. All we are adding in this is (c) "loiters in a public place and in any way obstructs persons who are in that place". It is not as if the two major categories are not already included; one basically the disturbance category and the other the disturbance of the peace by means of a firearm or other disorderly conduct.
Senator Gigantès: Madam Chair, in the French text in the bill they use the phrase "le comportement d'une personne, même indéterminée" -- even an indeterminate person for the happening of a disorder. Causing a disorder maybe, but the happening of a disorder?
The Chair: I think that is just the language they have used.
Senator Nolin: We will all support the bill.
The Chair: Are you suggesting that we are doing our little bit of nit-picking here, Senator Nolin?
Senator Nolin: In my opening remark on that question I said exactly that.
Mr. Bobiasz: I think it is more than nit-picking but it is a consequence of the matter to which I alluded yesterday when Senator Corbin pointed out that we are making some adjustments to the French. It is purely the fact that for good and sound policy reasons we believe that drafting should occur in parallel and that there should not be translation.
Senator Nolin: On that point you will admit that in English you must prove one thing, in French you must prove two.
Mr. Bobiasz: After due reflection, I think that in the next bill that comes down the pike we will change that.
The Chair: I am happy to indicate that Mr. Bobiasz and Senator Nolin are in agreement.
Honourable senators, are we prepared to enter into clause-by-clause study of Bill C-17?
Senator Lewis: I move that we report the bill without amendment.
The Chair: It has been moved by Senator Lewis that we report the bill without amendment. Is there concurrence?
Hon. Senators: Agreed.
The Chair: It will be so reported tomorrow afternoon.
The committee adjourned.