Proceedings of the Standing Senate Committee on
Legal and
Constitutional Affairs
Issue 55 - Evidence
OTTAWA, Wednesday, February 17, 1999
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-51, to amend the Criminal Code, the Controlled Drugs and Substances Act and the Corrections and Conditional Release Act, and Bill C-57, to amend the Nunavut Act with respect to the Nunavut Court of Justice and to amend other Acts in consequence, met this day at 3:45 p.m. to give consideration to the bills.
Senator Lorna Milne (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, I see a quorum.
The first item on our agenda today is consideration of Bill C-51. Minister Anne McLellan is with us.
Please proceed.
The Honourable Anne McLellan, Minister of Justice and Attorney General of Canada: Madam Chairman, it is a pleasure for me to be here today. I appreciate the fact that you have agreed to take a break from your consideration of Bill C-57 to deal with Bill C-51. I appreciate that indulgence on your part because it will be difficult for me to return to accommodate your schedule in consideration of Bill C-51.
I would like to begin by explaining a bit about the purpose of Bill C-51 and why the government is proceeding with it at this time. It is an omnibus bill that contains a series of unrelated changes to the Criminal Code and other statutes.
The proposed amendments come from many different sources. They originated with input from the provinces, my officials, other government departments, the police community, and interest groups. Some of the changes are important ones. However, none of them is such a major departure from existing laws or policies that it would have required its own specific bill.
[Translation]
A few of the amendments do address specific policy concerns and I will examine some of what I think are the more significant ones in a moment. Other changes simply correct drafting errors, cross-references, and other legislative oversights which have been identified in recent years.
[English]
At the federal level, we were particularly concerned about making changes to the Criminal Code year-and-a-day rule and conditional sentence provisions. Provincial prosecutors, gambling and tourism officials were seeking important changes dealing with criminal procedure and gambling. Thus, we have decided to proceed with them in this bill as well.
These amendments normally would have been included in a regular omnibus bill, however I felt that several were too important to wait until the next major criminal law amendment package.
If there is a major policy theme underlying these amendments, it is that we must make amendments from time to time to ensure that Canada's criminal law remains effective, efficient, and up to date. The provinces have the responsibility for administering most of the criminal law. It is also important to note that many of the changes reflect provincial requests made through the coordinating committee of senior officials and other consultative channels. Not all provincial requests are being dealt with in this bill. I will touch on a couple of specific items in a moment.
I wish to be clear that, where we have decided not to proceed with a proposal, there are, in our view, compelling reasons for not doing so at this time. In some cases, changes would not be practicable or are contrary to other established policies. I would like to touch on some of the more important changes we are proposing.
Currently, the Criminal Code bars the prosecution of an offender charged with an offence in which the death of another person was caused if the death occurred more than one year and a day after the offence itself. This is a very old rule. It originated in the common law of the Middle Ages and was incorporated into the first Criminal Code in 1892.
We believe that the time has come to repeal this law. In fact, the repeal has been requested by a number of provincial attorneys general. It has lasted through the decades primarily as a form of limitation period on criminal liability and because, until recently, cases where death was long delayed raised problems for prosecutors in proving causation.
In the Modern Era, the rule only blocks prosecutions that could now be successfully litigated on their merits and it is inconsistent with the general policy that there should be no limitation periods on criminal offences in Canada.
At present, this policy is turned on its head. Relatively minor offences can be prosecuted at any time. However, the most serious offences known to our law have a limitation period based on the death of the victim. Advances in forensic science have made it easier to prove causation in many of these cases. Advances in medical science mean that more victims can survive serious injuries for extended periods.
Essentially, the case law says that, where the accused is proven to have done anything that has contributed to the victim's death in any way, the accused can be convicted of having caused that death if the contribution was more than minimal or negligible. This was always the case where victims died soon after the offence. We now propose to apply the same principle regardless of when the victim dies.
As a matter of policy, we are anxious to have this amendment apply as soon as possible. The Charter prevents us from proposing retroactive changes, nor would this be good policy. However, there is a good argument that cases in which the time period is still running when the law changes may be affected by the repeal. The legislation provides for this. There is also no reason to delay proclamation of this change, and the bill provides that the repeal will take effect on the day of Royal Assent.
Another major area in which the government wished to proceed quickly is that of sentencing and, in particular, conditional sentences. Those of you who have followed the debate thus far will know that some Canadians feel that non-custodial sentences are being imposed in cases where the accused should have been incarcerated and, as such, would like to see them abolished completely.
You may have been following this debate to some extent in the House of Commons. Your sister committee in the House of Commons has had to deal with a number of motions dealing with strongly felt reactions to the conditional sentencing provisions. Some suggestions for change go as far as repeal of the section; others call for a schedule of offences. This is a section that has attracted a great deal of attention and public comment since its introduction in 1997.
As far as we are concerned, some of those more dramatic possible changes to conditional sentencing should not be taken without considerable policy development, and we believe they would be premature at this point. A substantial number of conditional sentencing cases are presently working their way to the Supreme Court of Canada. The Supreme Court of Canada will hear five conditional sentencing cases from five different provincial courts of appeal this spring. These cases will determine when conditional sentences can or cannot be imposed. It is important to let the appellate process work before any major changes are considered. The changes that we are introducing today are minor but important to many in the criminal justice community.
The House of Commons Standing Committee on Justice and Human Rights has, as I have indicated, also agreed to review the application of conditional sentences. I anticipate that it will begin its work in the spring. Obviously, I will review their findings when the committee finishes its work.
Since the conditional sentence regime took effect in September 1996, it has become apparent that some specific changes are needed to the conditional sentence enforcement provisions. These changes are proposed as part of Bill C-51.
The major difficulty that has been identified is that, in some cases where sentence conditions are breached, the offenders cannot effectively be brought before the courts and dealt with before the time of their sentence runs out. Once the sentence expires, the courts lose jurisdiction over the offender.
To deal with this, the proposed amendments would stop the running of time on the sentence when the offender is in breach. The sentence would stop running when the offender is arrested for breach or when an arrest warrant is issued. It would not restart until court hearings on the breach have concluded. The offender would not be credited with this time. The jurisdiction of the courts to deal with the breach would be preserved indefinitely until a breach hearing can be held.
If the court eventually concludes that the offender did not breach the sentence -- or if there was a reasonable excuse or some other compelling reason -- the lost time could later be credited. If the court concludes that the offender did breach the sentence, it can terminate the conditional sentence and require the offender to serve the balance of the sentence in custody.
As I have indicated, several significant changes in Bill C-51 also deal with concerns raised by the provinces, territories, and police communities.
In the fall of 1998, a new diamond mining industry began production in the Northwest Territories. This is expected to bring badly needed economic development. However, there are concerns that the industry will also attract organized crime. Those of you who know of the diamond mining industry in other parts of the world, particularly in Africa, know that the possibility of the attraction of organized crime is not by any means an exaggerated concern. The experience of these other countries has shown that the high value of diamonds and the ease with which they can be concealed makes them ideal as a medium of exchange to smuggle or launder the proceeds of crime.
The government is committed to ensuring that Canada does not become a haven for individuals involved in organized crime. To protect the new industry, the proposed amendments would modernize old provisions dealing with the theft and illegal possession of precious metals and ores. The term "precious metal" would be replaced by "valuable mineral," to include diamonds and other non-metallic minerals. The presumption that someone caught in possession of uncut diamonds was not in lawful possession of them would be created.
A similar presumption for precious metals was found to infringe the Charter presumption of innocence by the Supreme Court and the proposed amendment takes this judgment into account.
Under the amendment, the accused need only produce evidence or explanation sufficient to raise a reasonable doubt in order to rebut the presumption, which meets the Charter requirement as defined by the Supreme Court of Canada.
Several other amendments also relate to the government's commitment to fight organized crime.
The proposed amendment to the Corrections and Conditional Release Act will ensure that those convicted of organized crime offences are not eligible for any form of accelerated parole review.
Senator Pépin and others brought this to my attention early in my time as Minister of Justice. I had probably only been Minister of Justice for a few weeks when Senator Pépin called me and raised a concern about a particular situation within the City of Montreal and the outrage that that situation created in the local community -- not only in the law enforcement and the policing community generally, but also among the people of Montreal and others in the province of Quebec who had followed these particular cases.
In this omnibus legislation, we are proposing the necessary amendment to the Conditional Release Act so that those convicted of organized crime offences will not be eligible for any form of accelerated parole review.
Other proposed changes would also make wiretapping available for serious prostitution offences. That is a key power for investigating telephone prostitution rings and indirect organized crime involvement. It would also include new "deceptive telemarketing" offences now before this house in Bill C-20 within the Criminal Code proceeds of crime scheme.
We are concerned about the targeting of vulnerable people, particularly senior citizens, by telemarketing fraud and by the involvement of organized crime in this type of offence. We see the confiscation of proceeds as a key element in combatting it.
Again, this is an issue about which all honourable senators are aware because it has received so much attention in the national media, and particularly in the provinces of Quebec and British Columbia. Telemarketing fraud is becoming a much more serious problem. It is so serious that the President of the United States raised it with the Prime Minister while they were in Denver two years ago at the G-7 meeting. It was raised in the context that Canada, though not exactly a safe haven for telemarketing defrauders, may be, in the minds of the President and of my colleague Janet Reno, very close to becoming a safe haven for these people. Telemarketing victims are overwhelmingly American, usually vulnerable senior citizens living in states like Florida, Arizona and California. The Prime Minister indicated to the President that we do take this crime seriously and that we would be acting in this area to deal with some of the gaps in our existing laws.
The provinces have also asked us for changes to the Criminal Code provisions dealing with gambling. Generally, gambling is a criminal offence unless the activity falls within one of a series of exemptions created in the Criminal Code, such as those for operations conducted or licensed by the provinces.
The changes we now propose would create two new, very narrow exemptions. One would allow dice games in operations that are conducted by the provinces. The other would allow gambling operations on international cruise ships.
These amendments are not intended to increase the overall level of gambling activity nor do we expect them to do so. Without the changes, the international cruise ship industry could not be developed in Canadian ports. We are seeking to ensure that gambling and tourism operations in Canada compete on an equal basis with those of other countries, especially the United States.
This is a very important issue for the tourism industry in Quebec, particularly in the port of Quebec City. We have received numerous representations regarding our ability to develop this part of the tourism industry. We are all aware that the cruise ship industry is growing by leaps and bounds. This country has a unique potential to exploit in terms of attracting foreign visitors to cruise the waters and the coastlines of our country. Consequently, we want to do whatever we can do responsibly to make our Canadian coastal destinations as attractive as possible for international cruise ships.
We do hope to make Canadian ports a more viable option for international cruise ships and to avoid having Canadian gamblers taking their business to U.S. casinos, which enjoy a competitive advantage in border states because provincial government casinos cannot presently conduct dice games.
I do not want to confuse the two issues. Both issues deal with tourism and the development of industry. There are real fears in the Windsor and Niagara Falls areas regarding casino development in the Detroit area. Detroit will authorize dice games in those casinos. Much of the clientele in Windsor is not local but comes from Detroit, and the addition of dice games, if a province so chooses, could be a competitive factor.
Keep in mind, this is merely permissive. Any final decision on whether dice games are allowed in the casinos of a certain province is entirely up to that province. Under the circumstances confronting us, casinos in certain of our provinces will be at a competitive disadvantage if they are not able to offer dice games. We do believe that the provisions are narrowly drafted in such a way that the province will have to continue its control and regulation of these games.
Opportunities for corruption and illegality are feared to be higher with dice games. I have never played dice myself but I understand the possibility for wrong-dealing is somewhat higher than with some other games of chance. Consequently, we want to limit the circumstances in which dice could be offered. Such games would have to be conducted and managed by the province.
To conclude on the gambling issue, I would emphasize that the two proposed gambling amendments will not appreciably increase the overall levels of gambling activity in Canada. The provinces will remain in control of gambling in their jurisdictions.
Under Part VII of the Criminal Code, the provinces may conduct a range of gambling activities themselves. They may license a somewhat more narrow range of activities, provided such activities are operated within the province.
We received a specific request from the Minister of Transport in Ontario, Mr. Palladini, on behalf of the provincial government of Ontario to consider the amendment to the Criminal Code that we are proposing. The issue of dice games has attracted some prominence in Ontario because of the potential opening of major new casinos in the Detroit area.
Once the Criminal Code permits an activity, I underscore that each province can decide which permitted gambling activities it will conduct and license. In this way, provinces will have the same control over dice games that they have over other activities. Gambling on cruise ships will not be allowed while they are in port.
Another area of the criminal law that is of concern to my provincial counterparts is that of child prostitution. This was the subject of Criminal Code amendments in 1997, however several provinces have subsequently approached us for a further change, to make the offence easier to prosecute. They asked us to bring forward an amendment changing the offence from "obtaining the service of a young person" to "communicating with a young person" for that purpose. I am happy to propose such an amendment in this legislation.
Concerns about the infringement on the Charter right to the freedom of expression have already been resolved by the courts with respect to similar wording in other prostitution offences.
Several changes in the area of search and seizure are also proposed in this legislation. The Criminal Code and Charter require that prior judicial authorization must be obtained before police can use electronic surveillance in their investigations. Where this judicial permission is given, the authorization allows police to surreptitiously install the necessary listening devices. However, the legislation says nothing about their subsequent removal.
The proposed amendments would clarify that judicial permission to install and use these devices also includes permission to remove them. In cases where the initial authorization runs out before police can safely return to retrieve the devices, the proposed amendments would also allow the courts to specifically authorize their removal, subject to appropriate conditions.
The wording governing a series of search warrant provisions would also be amended to standardize the provisions and to ensure that only public officers who have law enforcement responsibilities and peace officers could execute search warrants.
There is also concern at both federal and provincial levels about the problem of domestic violence and the fact that in many such cases victims or other witnesses may be intimidated or influenced by the accused.
In 1997, the Criminal Code was amended to allow a justice who denies an accused person bail to also order that the accused not communicate with any witnesses or victims while in custody. Provincial authorities have subsequently pointed out that these non-communication orders are not effective until the accused has been brought before a justice for a bail hearing. This could be several days after the initial arrest, during which time accused persons can and do contact victims or witnesses and, dare I say, in situations that have been pointed out to me, harass victims or witnesses.
To deal with this problem, the proposed legislation would extend the power to impose a non-communication order to the first justice who sees the accused after arrest. The temporary order would bar communication while the accused is held, pending the bail hearing. It would be reviewed by the justice who hears the bail application who could replace it with a non-communication order pending trial.
As I indicated at the outset, these proposals are not major reforms of Canada's criminal law. However, they are still important to make it effective and efficient in protecting society. As part of this effort, we must from time to time make changes to address minor policy concerns, adjust offences and punishments, modernize the statute, and correct oversights enacted in other recent legislative initiatives.
In conclusion, what is before this committee is a collection of unrelated proposed amendments to the criminal law. In large part, these amendments have not been generated by us but have been brought to our attention by those who administer the criminal justice system in our country, the provinces, policing authorities or, in some cases, the tourism industry and others. I certainly appreciate the fact that there are many in this country, including yourselves, who are able to assist us in the Department of Justice in identifying problems, gaps and omissions in the existing criminal law and suggest to us ways that we can fix them to ensure that we do have a fairer criminal system which, indeed, protects society to the greatest extent possible, keeping in mind concerns such as the Charter of Rights and Freedoms
As always, Madam Chairman, it is a pleasure for me to be here today with you. All of you know Mr. Roy, who is here with me from the Department of Justice, who knows the Criminal Code inside out and upside down. He and I, along with other officials as required, would be happy to answer any questions, comments or concerns that you have.
Senator Beaudoin: My first question is on the one-year-and-one-day provision. It has been in place a long time, if I am not mistaken. I agree that it should be changed.
Do I understand you correctly to have said that from now on everything will be left to the trial judge concerning the question of evidence because of cause and effect? If that is so, that may be the main reason for it. I understand that medical science has made tremendous progress. Obviously, there is no reason for this provision to exist any longer. What concerns me is that, usually, the Supreme Court, under the Charter of Rights and Freedoms, does not like unlimited periods of time. And that is exactly what will happen; it will be unlimited. It may be 10 years, if you are able to establish by evidence that it is 10 years.
We had that debate on the issue of war crimes, for example. If I understand international law, there is now no limit. For the internal law of the country, there will now be no limit. I do not have a problem with that. However, the fact is that we have no precedents in this regard. Are you quite sure that it is not against the Charter of Rights and Freedoms?
Ms McLellan: At present, in the Criminal Code, there are no limitation periods for murder, for example. For virtually all offences under our criminal law, there are no limitation periods.
As a basic rule in our criminal law, there are not limitation periods that attach to a crime such as murder. Many Canadians find it offensive that the one-year-and-one-day provision exists in light of modern science and medicine. In fact, today, in many cases, someone may linger in a comatose state for years due to a particularly brutal and vicious assault or beating and they will die. It is an outrage to society that the person or persons who perpetrated that crime cannot be dealt with.
Senator Beaudoin: I am satisfied that it is a question of evidence. You must establish that there is cause and effect.
Ms McLellan: The rule of burden of proof would apply.
Senator Beaudoin: That is right. After 20 or 30 years, it would be impossible.
Ms McLellan: Indeed, it may well be.
Senator Beaudoin: It is never unlimited in practice because the rules of evidence are there.
Ms McLellan: There will be practical evidentiary concerns. Again, that exists in any criminal prosecution where a significant period of time has gone by. Obviously, prosecutors would have to take that into account in determining whether they have a case that is worthwhile proceeding with.
Senator Nolin: I wish to refer to clause 50 of the bill. My question is somewhat technical. It concerns the retroactivity rule on such an amendment when the rights of someone who has been convicted or the time between his conviction and the sixth of his time arrives.
In the case of someone who is charged or convicted today of one of the two subsections listed in the offence, will that section apply even if that person were convicted before this bill comes into force? When will his or her right to a non-retroactivity amendment apply?
Mr. Yvan Roy, Senior General Counsel, Criminal Law Policy Section, Department of Justice: That is a good question. The answer is probably simpler than it would have been otherwise. You will have noticed from the way the clause is drafted that, in order for the person to have been covered by this, he or she must have been found guilty of a criminal organization offence. These offences were created in 1997 by then Minister Rock, in Bill C-95. You have had only a handful of prosecutions. As far as I know, no one has been found guilty yet under these provisions.
Once this legislation becomes law, the issue will not need to be addressed because these people will have already been found guilty at the time when this bill comes into force.
Senator Nolin: Is money laundering covered in the description of "criminal organization offence?"
Mr. Roy: Yes, it is.
Senator Nolin: We have one famous case in Quebec.
Mr. Roy: We have many famous cases.
Senator Nolin: I want to know whether this bill will apply to that convicted person.
Mr. Roy: In order to answer that question, you would have to return to "criminal organization offence" as it is defined in the Criminal Code.
In order for this to apply, a finding must be made by the judge that this offence -- whatever it is, for example, someone who has taken part in the laundering of money in an organization -- was done for the purpose of helping an organization as defined in this bill.
In the case that you have in mind, for instance, this is not a finding that the judge had to make.
Senator Nolin: No, because the party was not accused of that.
Mr. Roy: That is right. He was not charged with that.
Senator Nolin: Let us assume that he was charged with this offence.
Mr. Roy: He would have had to have been charged under this provision.
Senator Nolin: Let us take a hypothetical situation. If the person in my example were convicted of that charge this morning but Bill C-51 did not come into force before three weeks, would clause 50 apply?
Mr. Roy: In the hypothetical case where someone had been charged with this particular offence of a criminal organization offence and there is a finding made beyond a reasonable doubt by the judge, either at the time of the conviction or at the time of sentencing -- because it can be done at that stage, too -- then there is no question that the person can be captured by this section.
Senator Nolin: That can be part of the incriminating evidence.
Mr. Roy: Your more subtle question -- and I am not trying to avoid it -- is to say that this person is found guilty now and is sentenced now but the provision is not yet in place, therefore will that person be caught by that provision down the line? We must be careful with the Charter of Rights and Freedoms as we may very well have someone whose situation has crystalized.
Senator Nolin: When you are convicted or when the time elapses?
Mr. Roy: Yes. However, the answer to that question is not crystal clear. We have had other bills that have come before this committee where the issue was a live one. I would refer you to Bill C-45, which dealt with the faint hope clause in the Criminal Code. Some of the provisions in that legislation had a retroactive effect, some did not.
There are probably some prosecutors and some officials who will feel that clause 50 to amend applies retrospectively. Some of them will make that argument. I do not know the answer. It would not be wise for the minister or me to prevent that type of interpretation. However, there is a Charter issue that can be addressed.
Senator Moore: Minister, I should like to ask you or Mr. Roy about clause 7, which amends section 207. As I understand it, cruise ship vessels must be designed for the international transport of passengers on 48-hour trips. They cannot operate casinos while in port or within five nautical miles of a port. They cannot have on-board gambling if they carry passengers from one Canadian port to another without an intervening stop in a foreign port. Each voyage must cross international, not foreign territorial waters, which requires ships cruising off the East Coast and West Coast to be at least 12 nautical miles offshore at some point in the voyage and excludes the Great Lakes entirely.
Do we have a definition of "international waters" and "foreign territorial waters?" We have excluded the Great Lakes; however, we still have the St. Lawrence Seaway, whether or not we cross into U.S. waters in the channel as you go up to the Thousand Islands and up that way. I am thinking also of the B.C. and Alaska situation. Could you clarify that?
Ms McLellan: Mr. Roy will clarify this for you. We do not have a definition of "international waters." Mr. Roy will explain why that is so and what we do define.
Mr. Roy: As the minister explained in her opening remarks, this amendment was meant to be extremely narrow. The purpose of the provision here is to favour the tourism industry and not to create riverboat gambling that would be operated by private operators.
The minister clearly instructed us not to try to address interprovincial ferries and issues that may be raised with respect to that or other forms of crews operations that would not be international in nature. What we mean in that context by "international in nature" is that what is aimed at here is to bring in people from outside of Canada to Canada for the purpose of tourism. What we, as officials, and the minister were told by those who operate that kind of business is that not having the ability to operate casinos while in Canadian waters is a good enough reason for them not to travel here. They made the same comment and the same pitch to provincial authorities, in particular in the province of Quebec. Because of the geography of Quebec, they must stop their gambling operation as soon as they get into Canadian waters.
You asked me: How do we define "Canadian waters?" We must go to the Oceans Act of 1996.
Senator Moore: That is the case in Nova Scotia as well. A growing number of cruise ships come to the East Coast provinces.
Mr. Roy: That is very true. You must then go to the definition of what we are talking about here; that is, what are the "Canadian waters" that we must talk about? Under the piece of legislation that was passed in 1996, we are talking about the 12 miles from the low-water point. That is "Canadian waters." However, that is not where the Province of Newfoundland, the Province of Nova Scotia, or the province of Quebec starts. This portion of water is Canadian water but it is not part of a province.
In order for the scheme to work, we must have those cruise ships that are built for the purpose of going on the high seas. It would not be in the best interests of the provinces to allow these ships to stay in the neighbourhood, to go up and down the St. Lawrence River indefinitely, taking people on board in Rimouski, in Halifax, in Dartmouth or in St. John's. That would be intolerable from the perspective of the provinces who have their own interests in gambling.
We realized in trying to draft that narrow amendment that it was imperative that the cruise ships must go outside of the Canadian waters as they are defined in the Oceans Act. Therefore, they must go outside of the territorial sea of Canada. Again, this is defined in the Oceans Act. We have chosen to use a term that is well understood by most Canadians and, I would say, by most of the people who will be confronted with this; that is, to go into "international waters." This term is not defined in this legislation or in the Oceans Act.
Senator Moore, you were right to point out that this definition excludes the Great Lakes. This scheme will not allow a cruise ship to go from Toronto to Buffalo and back to Toronto. That is not in international waters.
Senator Moore: That would include the St. Lawrence Seaway. Is the seaway not international waters?
Mr. Roy: The seaway is also excluded in the sense that it is considered to be inland waters. Therefore, as an example, a ship that stays within Canada and goes from Niagara Falls to Montreal and back does not go into international waters. Therefore, such a ship is not protected by the exemption that would be created by proposed section 207.1.
I hope that is clear. It is a difficult point. We have been instructed to make a narrow allowance in order to protect the gambling industry in those provinces that have one.
There are other interests, such as interprovincial ferries, where different considerations come into play. We can discuss such issues as well.
The Chairman: So the Great Lakes are not considered to be international waters. All areas are considered either Canadian waters or American waters. I have visions of boats zigzagging up the St. Lawrence.
Ms McLellan: As we have gathered from Senator Moore's questions and from your own, Madam Chairman, there are a host of issues. If the provinces or the tourism industry or others want us to address such issues in future, we may well do that. Such issues, however, are not addressed in this legislation. No province asked us to address those issues, particularly not the provinces of Quebec and British Columbia.
We have created a very narrow exemption to deal with a very precise problem in terms of levelling the playing field for one specific aspect of the tourism industry involving international cruise ships. That is all we want to do here.
One might suggest that we could do more and, yes, some time in the future we may do so. We do not set out to do that here. To go further would implicate a variety of interests and would require fulsome federal-provincial negotiations and discussions to determine the range of interests of the provinces. Depending on how far one expanded the notion of cruise ships and gambling, one would quickly discover a whole host of competing provincial interests and we as a federal government would need to move very carefully.
Senator Joyal: I find myself caught on the same issue as Senator Moore not because I like gambling but because it is a proposal we must address. Who will be licensing those cruise ships to manage their operations? As you know, presently, the casino operation operates exclusively under provincial licenses. Have you considered that?
Mr. Roy: This was considered and discussed with the provinces. There was unanimity that there was no need to regulate this particular type of activity because it is so limited and so enclosed. That is the purpose of this particular drafting. Canadians are not coming onboard these ships while these ships are in Canada. If you wish to board one of those ships, you can go to Boston or New York, come up the St. Lawrence River, and you will have noticed that, while in port, these gambling operations cannot function.
The purpose of the drafting was to ensure that a passenger is in no different situation on that ship while it is in international waters than while it is in Canadian waters. If you are not satisfied with the operation of that particular operator, complain to that operator; do not complain to the Canadian authorities. This is a case of caveat emptor.
Senator Joyal: In other words, when the ship is sailing the St. Lawrence River for New York, the casino on that ship can go on.
Mr. Roy: When the ship comes within five nautical miles, they must stop the operation. That is about a half-hour before docking, as we understand these things.
Senator Joyal: So there will be no licensing operation. Is this why you opened the Criminal Code to dice games now? Is it because you have allowed it on those cruise ships and not on the provincial casinos?
Ms McLellan: No.
Senator Joyal: Why then did you decide this was the point in time to open dice games?
Senator Bryden: Is it because the deputy prime minister's riding will be competing with Detroit?
Ms McLellan: Let the record show that I did not say that. What I will say for the record is that whether we like it or not, as individuals or as legislators, gambling and casino operations have become a lucrative business providing revenues obviously for provinces and providing employment in a growing number of communities across this country. The City of Windsor and the Niagara Falls area have casinos that attract large numbers of American visitors.
When we consulted with other provinces, such as Quebec, they were not asking for the change but they did see the benefits that could accrue to a casino, such as one in Montreal, because they attract a certain number of visitors from the United States. They are in no way opposed to this and they will decide as individual provinces whether they will choose to permit dice games in any or all provincial casinos.
There are as many as five new casinos being built in the City of Detroit and surrounding area this year, all of which will offer dice games. There is a prospect to strip out a significant amount of business from the Windsor and Niagara Falls casinos. This was deeply troubling to those concerned with the local economies, as well as to the provincial government and Parliament.
We took a long, hard look at this and decided, especially upon receiving an official request from the minister responsible in the Government of Ontario, that we would amend the Criminal Code to permit dice games if provinces so choose. We will not be the ones to make these decisions. It will be up to each individual province, as it is now, to decide whether they will permit dice games to be carried on in casinos in their provinces.
As I indicated, because there are particular concerns surrounding the game of dice, we have limited the circumstances in which the games can be operated. Clearly, we are putting the onus on the provinces here. The games will need to be conducted and managed by a province itself.
Senator Buchanan: In this clause, what is the difference between Yarmouth to Bar Harbour, Yarmouth to Portland, and Digby to Saint John? There are casinos aboard all those vessels, and two of them are registered in Canada.
Ms McLellan: That clause is not about dice games. We are returning to the question of international cruise ships.
Senator Buchanan: That is right.
Ms McLellan: Are these interprovincial ferries?
Senator Buchanan: No. This concerns Yarmouth to Portland, and Yarmouth to Bar Harbour. They have every kind of gambling aboard them. The one from Yarmouth to Bar Harbour is Canadian-owned.
Mr. Roy: Senator Buchanan, you must appreciate that, in some areas of the country, there may be a greater tolerance for some activities than there are in other areas. There are difficult jurisdictional issues here that would probably be deserving of greater scrutiny at a future time.
Ms McLellan: Mr. Roy has put it very delicately. I will say as a former Nova Scotian, and now as an Albertan, you probably do not want to go there.
Senator Buchanan: For the record, I regret that I brought it up because I like going on those boats.
Senator Joyal: My question is about the conditions of sentencing, which is an issue ripe for discussion. Why did you choose to restrict your amendments essentially to organized crime activities while there are other elements of the Criminal Code that are very important, such as all the offences linked to sexual assault, child abuse and so on? When this committee dealt with the DNA bill, we made special provisions for certain categories of offences that we felt were more important than some others. Why did you not choose to include in those provisions offences that would not be admissible for conditional sentencing?
Ms McLellan: Our discussions about organized crime dealt with the Conditional Release Act and not conditional sentencing. Do I take it that your question is about conditional sentencing as opposed to conditional release?
Senator Joyal: I am sorry, I meant to say conditional release.
Mr. Roy: Senator Joyal, the amendment that is proposed by the government in clause 50 is to add to a series of offences that are already excluded from the consideration of accelerated parole release. That list is found in the legislation. Indeed, the offences that you mention are already covered therein. Thus, they are already excluded from consideration. Organized criminal offences are added to that list which already exists.
Ms McLellan: We are adding it, in part, because we all know that organized crime is becoming a more serious, deadly and destructive form of crime in many of our communities. Quite truthfully, I think it was an oversight that it was not included in this list in the first place. What we are trying to do is remedy that oversight by adding it as one of the offences that will not be subject to accelerated release.
Senator Pearson: My question has to do with the issue of making it easier to prosecute those involved in child prostitution. I refer to clauses 4 and 8 of the bill.
As I understand clause 8, the issue of communication with a person under the age of 18 for the purposes of prostitution will now be a punishable offence. In the existing act, I understand that a person could be prosecuted only after performing the act, is that right?
Ms McLellan: Yes.
Senator Pearson: At one point, we were discussing the issue of someone under the age of 18 or who appears to be under the age of 18. Is that issue still being discussed?
Mr. Roy: First, with reference to clause 4, and if this bill is passed, it would be possible to use electronic surveillance, wiretap, for offences having to do with prostitution. It adds those offences to section 183 for the purpose of making it possible to wiretap.
Clause 8 was brought forward because the Provinces of British Columbia and Alberta, in particular, have said that the change that was made in 1997 is not as helpful as they had hoped it would be. That section was put in the code -- and perhaps you were a member of the committee at the time it was brought forward. The amendment was brought forward for the purpose of allowing the police to use decoys, that is, agents. The way it was drafted you had to prove that the person was communicating with a young person. It is impossible to detect those types of offences.
What was done then was to say, "We will be able to use decoys. However, the way to prove the offence will have to be to show that the person believed that he or she was doing business with a person under the age of 18." Therefore, the person has to appear to be under the age of 18 for that business to be possible in order to prove that case beyond a reasonable doubt.
The two provinces I am talking about said that it would be easier for them to make their case before the courts if it was sufficient to communicate with someone for the purpose of obtaining those services from a person under the age of 18. Clause 8 states:
Every person who, in any place, obtains for consideration, or communicates with anyone for the purpose of obtaining for consideration, the sexual services of a person who is under the age of eighteen years...
That is sufficient to make out the offence. The business about appearing to be under the age of 18 is not necessary any longer because it is sufficient that there is communication for that purpose.
It was necessary to have the appearance clause in the old section because you had to prove beyond a reasonable doubt that the person believed that they were conducting an activity for the purpose of obtaining the services of someone under the age of 18. That was the reason. We changed the focus in order to make things easier.
Senator Pearson: Can you now use a decoy?
Mr. Roy: You can now use a decoy, very easily actually.
Ms McLellan: It is easier than it was before.
Senator Pearson: However, the decoy would not be under the age of 18.
Mr. Roy: You may be communicating for that purpose with someone who is under the age of 18, but you may be also communicating for that purpose with someone who is over the age of 18. The gravamen of the offence is the communicating.
Senator Pearson: Communicating with someone over the age of 18 already exists in the law.
Mr. Roy: Exactly. Suppose I am the intermediary and someone wants to have an opportunity to have sexual activities with someone under the age of 18. The middleman is guilty on the basis of clause 8, the way it is written. It is broader, it is easier to prove.
[Translation]
Senator Pépin: I did indeed stress to you very early on in your mandate the importance of amending the legislation as it pertains to drug dealers. The existing legislation is structured in such a way that offenders who have committed violent crimes do not have access to accelerated parole review. However, a number of big-time drug smugglers, who were dealing millions of dollars worth of drugs, did in fact have access to accelerated parole review and several of them were released and subsequently went back to their native country.
Why bring in these amendments through an omnibus bill instead of within the context of the current parliamentary review of the Corrections and Conditional Release Act? Is there a reason for this? Draft legislation respecting the corrections and parole system is currently being considered. Will the proposed legislation be more effective?
[English]
Ms McLellan: This proposed legislation falls within the Solicitor General's jurisdiction, not that of the Minister of Justice. Mr. Andy Scott, the Solicitor General at the time, agreed that this was important enough and a discrete enough change to the existing legislation that we could bring it forward in the proposed omnibus legislation, as opposed to postponing that portion to wrap it into the larger review that the committee will be doing in relation to the operation of the legislation overall.
Senator Pépin: It is two years old already.
Ms McLellan: That is correct. This problem was identified two years ago this summer. Minister MacAulay is in complete agreement with this. He has no problem with us moving forward with this amendment to the Conditional Release Act at this time.
The Chairman: Minister McLellan, thank you for appearing before us today.
Ms McLellan: Thank you. It is always a pleasure.
The Chairman: Honourable senators, we will now turn to Bill C-57. In that regard, Mr. Howard Bebbington is our next witness.
Mr. Bebbington, please proceed.
Mr. Howard Bebbington, Counsel, Criminal Law Policy Section, Department of Justice: Madam Chairman, our purpose in being here is to answer any questions you may have. If it is of interest, I could offer a short presentation on the structure of the bill, although this is something you may wish to defer until clause-by-clause consideration tomorrow.
Senator Beaudoin: The other day we heard from witnesses whose collective rights are in no way affected by this bill, in my opinion. The Parliament of Canada has full authority over that territory. Section 96 does not apply. They may establish the legal and judicial system that they wish. I understand that they may agree or disagree between themselves about their rights and the way they will be handled, however, this is purely politics.
Providing that you are remaining within your sphere of jurisdiction, and you respect the Charter of Rights and division of powers, you may do what you wish in a way.
How might we solve the problems that they have raised?
I am ready to vote for that bill tomorrow. I do not have any problem at all. If, later on, some treaty rights cause some concern, it is up to them to come before the court.
They said that that issue must first be pleaded in the court of Nunavut. That is true, but appeals can be made to the Court of Appeal and to the Supreme Court of Canada. I had the impression that they wanted to escape the first court. How can we do that? I do not think we can do that.
Mr. Bebbington: Thank you for your question. You have said many things that I, too, would say. It is important for everyone to understand that this bill deals only with court structure. The claim, to the extent that it may exist with the Dene, is a claim under substantive law. Our bill changes no substantive law.
Senator Beaudoin, as you have pointed out yourself, the Charter continues to apply in all its various attributes. Common law or statutory law, we make no changes. Our bill deals only with the structure of the courts. It deals with some procedural law related to that, but it will not affect the substantive claim.
As we have said, to the extent that they may have a claim and this is a subject of dispute between the federal government as represented by the Minister of Indian Affairs and Northern Development, there is an issue. That issue is before the federal court in a case called Samuel and will proceed through the normal pace to be resolved.
With respect to the Nunavut court, there is a suggestion, if you will, in their proposed motion that you amend Bill C-57 to enter a legislative stay for any matter before the Nunavut court that touches on their claim. There is a suggestion somehow that the Nunavut court will not be impartial.
I want to speak categorically on this. The Nunavut court of justice will be a superior court like any other superior court across the country. There will be superior court judges with all the trappings of independence. They will be completely independent and impartial when issues are brought before them.
Senator, you certainly know this area better than I do. There are various parts of the structure that ensure accountability. Any decision of a justice of the peace can be appealed. Any decision of the court of justice can be appealed to the Nunavut court of appeal and ultimately on to the Supreme Court of Canada if necessary.
It is most important to remember that we are setting up a court structure. We are not changing substantive law. We will not affect their rights by our bill. There is some contention about their rights to the extent that they exist or do not. That must be and will be resolved through the court process. Our bill will not affect the substantive rights.
To the extent that there is a concern that the Nunavut court of justice is somehow a specialized court, for Inuit only or Nunavut only, I must again deny this. It is a superior court of general jurisdiction with all of the trappings of independence that exist in any other court. Therefore, in my submission, if a claim is raised in the context of a matter before the Nunavut court of justice, it will be properly addressed. If parties are not satisfied with the decision from the Nunavut court of justice, that decision may be appealed through the normal course.
Senator Beaudoin: For the purposes of the record, I am pleased that you confirmed all those areas.
Senator Bryden: I did not have the opportunity the other day to ask any questions of the Dene. However, I was left with the impression that the new government, as of April 1, would be more active in enforcement of laws in the new territory of Nunavut as regards trapping and fishing compared with enforcement levels when the territory of Nunavut was part of the Northwest Territories.
It appears that the existence of treaty rights to trap or fish was not questioned. Charges were not laid or, if they were, they were not pursued. There may be one case that is going through the courts.
The impression I received is that the Dene will be trying to exercise what they consider to be their treaty rights under the new government. Nunavut will have different interests regarding the wildlife and its preservation, and so on. The system of justice includes the enforcement of the perceived violations of conservation attempts that might be done in a manner that, for want of a better word, would be harassing.
In the period of time that it would take to have a case go from the case of first instance to the Supreme Court of Canada, many charges could be laid for various offences. Is there any danger of that?
Mr. Andy Watt, Coordinator, Northern Issues, Department of Justice: Madam Chairman, we may be dithering back and forth because that is a very difficult question for us to answer. I do not know how we would guess at that situation. The management of game will be a high priority for the Nunavut government just as it is for the Nunavut Tunngavik, the Nunavut beneficiary organization.
By the same token, you could argue, I suppose, that because an aboriginal majority is running the new territorial government they may be more respectful of the claims of other aboriginal groups to have hunting rights in that territory. The bottom line is that it is way beyond our abilities to answer that question.
Mr. Bebbington: My area of expertise is court structure in criminal law and not land claims. I will own up to that right off the bat. However, it is important to remember that there is a distinction between the Nunavut government, which is a public government, and a government like that under the Nisga'a agreement which is what some call a third level of government.
The Nunavut government is a public government and must represent the interests of everyone there. If there is some sense in which arbitrary action is being taken by government officials, then there are remedies available through the courts, through the prerogative writs that will continue to apply in Nunavut. There are mechanisms to address those in the legal system.
I have heard anecdotally that in the NWT now there is not a lot of strict enforcement because people are aware of the differing opinions on rights in that area. I would hope, for my part, that the same sense of amnesty would continue into Nunavut. However, I cannot speak to that. That is beyond the pale of our legislation and our ability to influence.
Nunavut is a new territory. There is much that is new and must be sorted out. The Nunavut government, because the population is 85 per cent Inuit, will clearly have a strong sense of that element and identity. That element and identity may well result in greater respect for the rights and interests of others. It will take some time, senator, to sort out some of these things. Perhaps the first case of this nature will need to go to the Supreme Court of Canada. Perhaps the Samuel case, which has already started, will help resolve things, if it moves quickly through the process. The plaintiffs have as much to say about the speed of that process as does the government. It may take some time to get firm answers to all of these questions. That is part of doing anything new for the first time.
I appreciate the question, however, it is beyond our focus in the context of our bill.
Senator Bryden: I understand and I am prepared to support it. However, I was also trying to understand why these three groups were taking this opportunity to try to put forward their concerns. They probably should have put forward these concerns during the time the Nunavut Act was being considered. Perhaps this is rather late to come to it.
I did pick up on something else that was causing confusion.
We have been told that whatever rights the Dene had before Nunavut becomes an entity will continue thereafter, and that the courts will decide.
Perhaps it is just that no one understands it, but in the case before the courts right now, that is the issue; that is, the Government of Canada is taking the position that insofar as the Dene use and occupy the land north of the 6Oth parallel of latitude for the purpose of hunting, trapping and fishing, the said Indians do not do so as of right but, rather, under licence of the Crown, express or implied, on the premise that any such supposed rights to hunt, trap and fish aforesaid exist in the sufferance of the Crown.
Therefore, they are really saying that they are not protected by section 35 of the Constitution; it is not an aboriginal right. The Crown is claiming that they are there at its pleasure, on some sort of licence.
Senator Beaudoin: Except that they said that above the 60th parallel, section 35 does not apply. That is the first time in my life I have heard that.
What do you think of that argument?
Mr. Bebbington: I agree with you completely. Of course it applies. They have said in the letter that, given the position of the federal government that the rights are not protected, they do not have rights within section 35. However, that is the very thing that must be determined by the court, and that is an issue between the groups that appeared before you last week and the government.
Having looked quickly this afternoon at the letter from Grand Chief Flett, I must say that it reminds me of the danger of Justice officials speaking to matters before the court in this context, because things that we say may well be put in a context that we did not intend.
There is a danger in going too far in talking about this claim. The main message that I would like to leave with you is that our legislation deals with court structure. It does not deal with rights. I understand their interest in taking advantage of this forum to continue to present their claim, which they honestly believe has tremendous merit, however my response to that is that this bill is neither the occasion nor the forum for that. Unfortunately, it is a matter under litigation and the litigation will have to resolve that very issue; that is, whether there are protected treaty rights or whether the rights exist only by licence and sufferance.
The letter from Grand Chief Flett attaches a January 7, 1998 letter from the Minister of Indian Affairs and Northern Development. The third paragraph sets out exactly what we said to you last time. There is no difference of view between the Minister of Justice and the Minister of Indian Affairs.
In the body of the letter, they refer to the first and second sentence, but the third sentence says:
On the contrary, Part 40.4 of the Agreement specifically protects existing treaty and Aboriginal rights of other Aboriginal groups within the Nunavut Settlement Area.
Although it is the position of the government, as represented by the Minister of Indian Affairs and Northern Development, as she says, that they do not have treaty rights north of the 60th parallel, should the court find that the Manitoba Denesuline have rights as claimed north of the 60th parallel, the Nunavut final agreement in no way jeopardizes these rights. As I said, it goes on to say:
On the contrary, Part 40.4 of the Agreement specifically protects existing treaty and Aboriginal rights of other Aboriginal groups within the Nunavut Settlement Area.
This is all the minister and I were trying to say when we appeared before you. There is it no difference of view there. Again, I urge you to remember that this is a claim to be dealt with under the substantive law. Both of the parties cannot be correct. It is a matter that the courts will resolve. To the extent that the courts find their rights do exist, the structure, certainly in the land claims agreement, will preserve that, and there is nothing about the structure of this bill that will affect that at all. If you entered a legislative stay of every claim that comes before the Nunavut court of justice, you would create a Nunavut court with a huge gap in its jurisdiction. It seems to me that that would be an unwarranted and very dangerous thing to do.
Senator Bryden: I do not disagree with what you have said at all. I do, however, want to make the point that at our last meeting we were talking a little bit at cross-purposes. The witnesses were concerned to some extent about advocating their position, which is being put before the courts. You pick your arena where you can find it. On the other hand, I can understand them being concerned about it.
[Translation]
Senator Nolin: As I understand it, we are establishing a common law court system for the Territory of Nunavut. This means then that prerogative writs will still continue to be issued.
Mr. Bebbington: That is correct.
Senator Nolin: Will these writs be issued by us or by this jurisdiction? I ask you this because if a Canadian living in this territory challenges the legality of an action taken by the administration, the challenge will come in the form of a prerogative writ. That is the only way to ensure that his rights are protected. I hesitate to use the word "injunction," but that will be the only alternative. Will the right to a prerogative writ flow from us or from the territorial jurisdiction? That is a fundamental consideration.
Mr. Moray Welch, Counsel, Legal Affairs, Department of Justice: Because the Court of Justice will be a superior court, much like any other superior court in the land, it will have the inherent authority to issue prerogative writs. When a citizen feels that his rights have been breached by the government administration, that citizen can turn to the Nunavut Court of Justice and ask it to issue a writ.
Senator Nolin: Who in fact is responsible for issuing these writs? The federal government or the territorial government?
Mr. Welch: In fact, this responsibility rests with the federal government.
Senator Nolin: Pursuant to this legislation?
Mr. Welch: Yes. We appoint the superior court judges and the inherent authority to issue writs goes along with this. Legislative powers are assigned in the same way as they are for the Northwest Territories or Alberta, even though we are dealing with a different area.
Senator Nolin: In Quebec, the authority to issue prerogative writs rests with the provincial government. Who will have this authority in the Territory of Nunavut?
Senator Beaudoin: The federal parliament or the territorial government?
Mr. Welch: The federal parliament. Pursuant to section 31 of the Nunavut Act, the federal government assigns to the Court of Justice of Nunavut, as a superior court, certain powers and jurisdictions formerly exercised by the Supreme Court of the Northwest Territories prior to the coming into force of section 3 of this act.
Senator Nolin: Getting back to certain questions raised by Senator Bryden, when an individual believes that his rights have been violated because of action taken by the local authority, that individual can go before the court, state his case and ask the court to take remedial action, pursuant to its authority under the common law system to safeguard the rights of that individual. Is that correct? These courts enjoy all of the prerogatives and privileges of other courts in Canada in terms of the impartiality and independence of the judges.
Mr. Welch: Correct. These prerogatives and privileges are inherent.
Senator Nolin: By inherent control of both superior courts.
[English]
Senator Bryden: I wish to ask a supplementary question to ensure that everyone is clear. The fish and game laws will be passed by the Nunavut government and will initially be enforced by their enforcement arm.
Senator Nolin: It is a commission.
Senator Bryden: Yes, or a game warden. They will lay the information before a justice of the peace.
What needs to be determined at the Supreme Court level is whether the laws that are passed by the legislature of Nunavut supersede whatever traditional rights the Dene believe they had. If they do not have any rights, then it applies to everyone, including them when they are on the territories. On the other hand, if there are section 35 rights, the legislature of Nunavut cannot abrogate those rights, as I understand it.
Senator Nolin: There are two ways to have access to the courts. First, through asking or arguing with the authority to obtain a licence; second, a decision is or is not taken by the local administration and I go to the court and say, "Look, they should or should not give orders to that administration to protect my rights."
Senator Bryden: I will not say any more except this: When I go hunting in New Brunswick, I must have a licence and I am only entitled to hunt during certain periods of time.
When my Maliseet friend goes hunting, he can go hunting when and where he wishes for whatever reason because his rights have not been settled by our legislature. This will need to be settled.
Senator Adams: The organizations and people who were involved in the Nunavut agreement in 1993 have met many times concerning this matter. I do not think it is Nunavut's fault. Those people were there five or six years ago. All of a sudden, they are being told that they must come back to us. Are they only claiming hunting rights, or do they want land in the future as well? What are they asking for?
Mr. Bebbington: I cannot answer your question fully. I would not for a moment purport to be able to represent their claims. Clearly, they have an issue about the ability to have harvesting rights over that area. I do not know if they are claiming exclusive rights to the land. I think not. However, I am the wrong person to ask about that.
As to the comment made in the first part of your question, namely, that this matter has been under some question for some time, the NTI, its predecessor and the federal government are willing to sit down and negotiate in some of these areas. It is a process that, unfortunately, has not been successful to date but negotiations must be allowed to continue through that process.
Senator Adams: Does any clause in Bill C-57 addresses taxation in relation to hunting and fishing?
Mr. Bebbington: Nothing is said about that in Bill C-57. These will be policies for the new district of Nunavut to address.
Senator Adams: The Indians are looking at fishing and trapping, which will be controlled by Nunavut. They must report to the Nunavut government how many animals are killed every year.
Senator Forrestall said that he has no section 35 rights. I do not know if he was jesting or not. He said that if he were to go to court, he could lose his rights; is that true, Senator Beaudoin?
Senator Beaudoin: Section 35 is substantive. It is about constitutional rights. It is in a special category. I like your distinction when you say, "you establish a court." It has nothing to do with the substantive law that they will apply.
My impression is that they seem to have no confidence in the court. I hope I am wrong.
Mr. Bebbington: Sadly, I share that impression. I hope time will prove them wrong with respect to this.
Senator Moore: Even if they were unhappy a decision from the Nunavut court, there is still the appeal process. It may take longer, but that avenue is still open to them.
For the record, what would be the implications for Nunavut if this bill were amended or delayed by the Senate?
Mr. Watt: We have given this some thought. First, we would need to speak to the Office of the Interim Commissioner of Nunavut, which is responsible for setting up the Nunavut government, to the judiciary, and to the Government of the Northwest Territories, and probably Nunavut Tunngavik as well.
The legal answer is that the proposed Nunavut legislation would establish a Supreme Court and a Court of Appeal without saying much more about it. It would not do anything in regard to the Territorial Court Act. The proposed Nunavut legislation generally duplicates for Nunavut the legislation that now exists in the N.W.T and would have duplicated the Territorial Court Act, except that the interim commissioner would have exercised his powers under the Nunavut legislation to ask the legislative assembly of the N.W.T. to amend that legislation for Nunavut effective April 1.
The N.W.T. legislature did that last fall. As a result, there will not be a Territorial Court Act on April 1, in Nunavut. This will be no territorial court. We will need to overcome that. It will be a mess.
There are some practical concerns that flow from that. Everyone is planning for the operation of the court system on April 1, at least after the ceremonies are over, probably April 5, on the basis of a single-level court system we are hoping to get through with this proposed legislation. Those adjustments will need to be made fairly rapidly and may be a little chaotic.
On a much more important level, perhaps, the symbolic importance of this new court should not be underestimated. It was solidly supported by the people of Nunavut, by Nunavut organizations and by political leaders up there. They see it as one of the first unique creations that will be in place in Nunavut. I am sure there will be many more to come once the legislative assembly gets to work, but this was one upon which we were able to reach an agreement and, in fact, asked to do it in advance of April 1 -- and we would like to do it, please.
Mr. Bebbington: In terms of the policy perspective, we were asked to do something unique in the Nunavut area, namely, to make a change to the court structure. I fear if lay people were hearing us they would say, "Where is the difference?" People outside the legal system may not see it; but to those of us who work in the legal system, the difference to go from two levels of court, which we have had historically, to one level is significant.
If this bill does not pass, a two-court default option will have to struggle into existence. My concern is that once that occurs it will be difficult to move from a two-court system to a one-court system. The Nunavut Justice Department is busily planning for a single trial court. They have very much focused on that as their wish. We believe the innovation provides all sorts of advantages for the way justice services are delivered in the North. If we miss this opportunity, my fear is that it will be very difficult to come back at another time to try to do that. Once you have established a territorial court with judges and with that function, it will be much more difficult to go from two to one than it is to start a new jurisdiction that way. In addition to the mess, I fear we may well lose for some considerable time the opportunity to innovate in a way that responds to the needs of the people and the needs of the justice system in the North.
Senator Joyal: Mr. Bebbington, when you were invited to the table I believe you said that you had a presentation to make to us.
Mr. Bebbington: I would be happy to do that now or even tomorrow just before your clause-by-clause study of the bill. I could spend a short time now giving you a sense of the structure of the bill, what is in it and where it is. I am completely at your disposal with respect to that. I would be happy to follow your wishes.
The Chairman: Please do.
Mr. Bebbington: As I am sure honourable senators will have observed, Bill C-57 comes in two parts. The first part makes amendments to the Nunavut Act. The second part makes consequential and conditional amendments and then deals with the coming into force of the measure. The name of the second part is a bit of a misnomer. You will have to understand that there are legislative draftspeople who have conventions that they insist on with us. The second part of the bill is by far the vast majority of the bill.
The biggest part of the second part deals with Criminal Code amendments. You will appreciate that the prospect of implementing a single-level court in a Criminal Code that contemplates two levels required a fair amount of restructuring. You will see, for instance, that clauses 25 to 58 deal with the Criminal Code. In addition, the second part of the bill contains amendments to the Young Offenders Act, the Judges Act, and many other federal statutes. The other federal statutes I do not want you to worry about. Almost exclusively, those amendments simply change the name of the court from the Supreme Court of Nunavut to the Nunavut Court of Justice. They are entirely consequential. I will come to those in turn.
I will now focus on the first part of the bill, which has four divisions. The first division makes amendments to Part I of the Nunavut Act. Many of those are consequential, but I would direct your attention to clause 2, which establishes, through amendment of section 31 of the Nunavut Act, the Nunavut Court of Justice as a superior court.
I would also direct your attention to clause 5. Clause 5 establishes an extremely important principle, namely, that the Nunavut Court of Justice will have the power to do everything that all judicial officials can do in a normal system; and, when the Nunavut Court of Justice does so, it retains its capacity as a superior court.
Those of you familiar with constitutional law will know that when you attempt to unify there are constitutional principles that prevent one from unifying at the inferior court level. We have followed the lesson of the Supreme Court of Canada. We are being careful to unify at the superior court level. That court will be able to do everything and, when it does so, it will retain its capacity as a superior court. That is an important principle. I direct you to clause 5 of the bill, which makes amendments to section 34 of the Nunavut Act.
Division 2 of the bill deals primarily with transitional matters having to do with pending cases and their transfer. Obviously, with the creation of a new territory and a new court system, there are issues about what happens with cases in the process. Those principles are set out in Division 2.
Division 3 contains a purely consequential amendment to the N.W.T. Act.
Division 4 refers to Schedule III of the Nunavut Act. Schedule III of the Nunavut Act contains a large number of consequential amendments, for example, changing the names of courts and bodies. We have had to go back to that and revise it again to substitute the name "Nunavut Court of Justice" for the name that was previously there.
I would like to highlight a few important features of the Criminal Code amendments, which are found in Part 2 of the bill. If you look at clause 50 of the bill, you will see that it enacts a brand new part of the Criminal Code that will deal exclusively with the Nunavut Court of Justice. In fact, that part is called "Nunavut Court of Justice."
Section 573 enacted by clause 50 again repeats, for purposes of the Criminal Code, this very important principle that the Nunavut Court of Justice will be able to do everything within that area. It will have all the powers of the territorial and provincial courts and the justices of the peace. It will have every imaginable jurisdiction in the Criminal Code context.
Section 573(2) emphasizes, again, the important concept that when it exercises those authorities, regardless of who in another jurisdiction might exercise that authority, the Nunavut Court of Justice retains its capacity, its standing as a superior court.
I will call on my colleague Moray Welch to tell you a little bit about section 573.1. It is an important part because it contains what we call our statutory review mechanism.
Mr. Moray Welch, Counsel, Criminal Law Policy Section, Department of Justice: The statutory review mechanism was designed because we are unifying at the superior court level, as Mr. Bebbington stated, to replace in certain circumstances the review that would be possible if one were before a provincial court judge. Section 573.1 sets out a certain number of limited grounds and limited subject areas with respect to which a review may be taken to a new body, a single judge of the Court of Appeal. These amendments were made to ensure that the substantive rights of the citizens of Nunavut would be in no way lesser than the substantive rights of any other citizen of Canada.
Mr. Bebbington: I will highlight one other part of the Criminal Code amendments dealing with appeals. You will find in clauses 55, 56 and 57 amendments to those parts of the Criminal Code dealing with summary conviction appeals.
With respect to indictable appeals, we are making no change. We have tried to change as little as possible in the code, only those things necessary to ensure that everything works properly. Indictable matters will be heard by the Nunavut Court of Justice and will go on appeal to the Nunavut Court of Appeal.
Summary conviction matters are somewhat different. Generally speaking, a superior court judge sits as an appellate court over summary conviction trials. Obviously, that is a difficulty when summary conviction trials are being conducted by the superior court judge, which, in this case, will be the Nunavut Court of Justice.
There are two possibilities for summary conviction matters in Nunavut. The first is that they would be heard by a justice of the peace. If they are heard by a justice of the peace, they will be appealable to a judge of the Nunavut Court of Justice and on again to the Court of Appeal. If, however, as we suspect will be the case for a considerable period of time, most, if not all, summary conviction trials will be heard by the Nunavut Court of Justice, we have arranged a special mechanism so that the first level of appeal will be to a single judge of the Court of Appeal. It is the same sort of process we have adopted for the statutory review mechanism to which Mr. Welch has just referred.
We have preserved that first level of appeal. We have also preserved the second level of appeal to a three-person panel of the court of appeal. We have done that so that summary conviction appeal rights in Nunavut will be substantially the same as exist anywhere else. No one before the courts in Nunavut will be able to say that by virtue of the process of combining the two courts we have lost a level of appeal, or rights or breadth of appeal. We have been very conscientious to retain those. That is found in clauses 55, 56 and 57.
The next major consideration is the amendments to the Judges Act, which are found in clauses 72 to 77. Mr. Watt will tell you a little about that.
Mr. Watt: Clauses 72 to 77 provide for the payment of salaries for up to three judges, the same salary as every other superior court judge receives. It provides them with the same entitlements to allowances as those received by judges in the N.W.T. and the Yukon, $6,000, which may have to be revisited at some time.
It provides something new, namely, for all three senior judges in the territories to become members of the Canadian Judicial Council. Currently, membership alternates between the Yukon and N.W.T., which is a little awkward.
Mr. Bebbington: The other component I would point out are the amendments to the Young Offenders Act found in clause 86 and following.
I wish to stress that what is here with respect to the Young Offenders Act is not substantive. It is not policy. What is involved are very few technical amendments, to adjust the Young Offenders Act to the single-level trial court system. It is quite apart from whatever may be coming with respect to a larger policy review of the Young Offenders Act, about which I will not speak further.
There are various other federal statutes mentioned in the bill. Those amendments, be they to the Divorce Act, the Customs Act, the Canada Elections Act, the Firearms Act or the Fisheries Act, are simply to change the name of the court, so they are purely consequential in their effect.
Other than the last clause, which deals with the coming into force rules, that is essentially what is before you in Bill C-57.
Senator Joyal: I wish to return to the question raised by Senator Bryden regarding the Dene situation in the new territory of Nunavut.
I am trying to understand what has changed in the new system versus the present system. Is it correct that, in the present system, the legislation adopted by the Government of the Northwest Territories applied to the entire territory, which will comprise Nunavut?
Mr. Bebbington: If I understand you correctly, yes.
Senator Joyal: Until we change the situation with this bill, the legislation dealing with hunting, trapping and fishing adopted by the Government of the Northwest Territories applied in the territory that the new Nunavut government will govern?
Mr. Bebbington: Yes, until the creation of Nunavut on April 1 when its own legislature will assume the authority to legislate in those areas.
As you may know, the N.W.T. law will be adopted for Nunavut and replaced and modified as the Nunavut legislature deems appropriate.
Senator Joyal: I am trying to understand the legal situation of a Dene person who presently stands accused in the court of the Northwest Territories of having violated a regulation relating to fishing, hunting or trapping and claims that he or she has fishing rights under a treaty. Will that person contest the jurisdiction of the court over them by claiming that, according to Samuel, that legislation does not apply to them, that they have privileges under a treaty?
A Dene who claims that he or she has fishing, hunting or trapping rights under Treaties 5 and 10 could plead as a defence that they are protected by those treaties, and the court will have to decide what it will do on that argument, taking into account the pending case of Samuel v. The Queen.
In your experience, what would the courts normally decide in such a situation? Do they receive that argument or do they wait until the main case of Samuel v. The Queen is decided?
Mr. Bebbington: I do not want to speak for people who are not present at the table, but my understanding is that for the most part those prosecutions are not now being pursued with any vigour. It is only in cases where the harvesting rises to a level well above anything that could be used for consumption that officials in the N.W.T. become concerned about it.
If a defence is pled before the N.W.T. court, that court must deal with it. I think it would be unlikely for that court to adjourn the matter pending the outcome of the Federal Court case.I do not want to get ahead of you, but I believe I have a sense of where you are going. I agree completely that there is, in a sense, no change. That dynamic exists now with the N.W.T. and will continue to exist in Nunavut.
One of the differences may be that in Nunavut these cases will come before a superior court, the Nunavut Court of Justice, which we think of as our highest level of trial authority and expertise. They will come before that court and that court will resolve that issue. If there is, at some point, some merit in combining the issues in some way, I suspect the courts will do what is appropriate in that context as well.
Senator Joyal: My point is that there can be conflicts between the legislation of the Northwest Territories and Treaties 5 and 10, as there can be conflicts between the new legislation of Nunavut and Treaties 5 and 10. I believe that the court will adopt the same position in both cases. I am trying to determine whether we are making it more difficult for the Dene under the new system or whether it is just a duplication of the condition in which the court operated under the previous system.
Do you understand my point?
Mr. Bebbington: Yes, and that is exactly right.
Senator Joyal: As an institution, we are concerned with the protection of minorities. If we feel that we are doing something that changes the status of citizens before the court, we must question that.
Senator Bryden was questioning the situation of a Dene contesting the legislation of the Northwest Territories based on Treaties 5 and 10 compared to contesting the legislation of Nunavut based on Treaties 5 and 10. The arguments of the Dene will remain the same. They will argue that that legislation does not apply to them because they have other rights under Treaties 5 and 10, and the court will have to decide what to do in those cases.
Mr. Bebbington: I could not have stated it as well myself. That is exactly right.
There seems to be an assumption by the Dene that the Nunavut Court of Justice is a specialized court somehow, that it is an Inuit court. This is not true. It is a court like a superior court anywhere else. It is independent from both levels of government. It will not be an arm of the NTI, which has a responsibility to pursue the interests of the Inuit people. It is independent. It must adjudicate in an impartial and an independent way between any parties coming before it.
As you have stated so well, there is nothing different about the structure or about what we are doing with the structure that alters the dynamics one iota in terms of how those claims are to be resolved.
Senator Joyal: I should like to thank Senator Bryden because the preoccupation I had intellectually with what we were doing is solved, to a point, by our witnesses. I personally wanted to be sure that what we were doing did not impose something upon them that was not appropriate. The court will decide about the Dene before and after the new system has been implemented.
The hypothesis that Senator Bryden put forward led me to think that with that piece of legislation we could end up without any direct changes in the legal situation for the Dene to make their case with either more or less arguments. I think they remain in exactly the same situation.
Senator Beaudoin: You are raising an interesting point. If I were the lawyer for the Dene I would say, "You are already in the Federal Court. Stay there." The new court will say, "We are the new court of Nunavut on April 1. Come before us." What do we do then?
Perhaps it is not possible, but I hope that the Federal Court will rule before April 1. In that case, there would be a right of appeal. It will probably go straight to the Supreme Court, and everything will be solved.
I do not want them to be caught between two court systems. If they are already before the Federal Court -- and they are, are they not?
Mr. Bebbington: Yes. In fact, they have chosen that forum.
Senator Beaudoin: I hope the Federal Court will not say, "It is finished now. We do not have any jurisdiction. Go before the Nunavut court." I do not think that would be fair.
Senator Bryden: No, they cannot do that.
Mr. Bebbington: There is nothing in our bill that will do that. The Dene have chosen their forum. They brought their action as plaintiffs before the Federal Court. The Federal Court action has taken a long time, but part of that is because the Dene have not pursued the case with all vigour. There have been times when negotiations occurred or times when they amended their Statement of Claim.
One can only hope that that action will move as quickly as possible at the Federal Court level. It is subject to appeal, as you have indicated, and may well end up in the Supreme Court of Canada.
Senator Beaudoin: If it goes that way, there is no problem. However, suppose they take their time and April 1 arrives. What will happen then?
Mr. Bebbington: There exists within our system of laws and courts the potential that there may different courts seized in different ways of the same issue. There is also a potential for inconsistent adjudication.
Senator Beaudoin: I do not fear for their substantive rights. They will be settled one day -- either before the Federal Court and the Supreme Court or the Nunavut court and the Supreme Court.
I do not have any problem with the substantive collective rights, but I have a question of procedure. They may be caught between two trials at the same time.
It will be up to the Federal Court to settle the problem because they are already there. If there is a new law that comes into course -- and that will be the case; Nunavut will be created -- then the court will apply the law as it is. Since the law that is before the Senate does not change at all the substantive rights of the aboriginal nations or people, they do not have anything to worry about. They may, perhaps, be in a position to say, "It is a bit complicated." That is part of life. I guess that in 1867 there were some problems with the federal and provincial governments.
The Chairman: They will not have anything more to worry about than they had before.
Senator Beaudoin: Since their rights are not imperial at all, I am ready to vote for the bill.
Mr. Bebbington: I am happy to hear that.
We do not touch the structure or the procedure of the Federal Court at all. We are dealing with what would be the courts of a province or a territory. The Federal Court will continue to exist in its relationship with Nunavut like it does anywhere else. We are not touching that at all, if there is a concern about that.
Senator Beaudoin: You are on very good grounds because criminal law is 100 per cent the responsibility of the federal government. The creation of a territory and giving power to a territory is federal, 100 per cent. How can you fail? That is, unless there is a bad judgment in court, and then you will appeal it.
The Chairman: If everyone is through with questions, I have one.
I am still a little concerned as to how the appeal process will work there when you have three judges in the new territory.
First, the case is originally heard before one judge. In the event of an appeal, it will go to a second one of those three judges. If that decision is appealed, then the matter goes before a panel of the three judges, two of whom have already heard the case.
Mr. Bebbington: The Court of Appeal is a separate court from the Nunavut Court of Justice itself.
Your point is absolutely correct, in that there might be some overlap in the membership. The Nunavut Court of Appeal may well contain some of the members of the Nunavut Court of Justice, but there will not be a circumstance that will occur when they will be hearing an appeal from themselves.
The Chairman: That is what I am concerned about.
Mr. Bebbington: I do not believe that that could ever occur nor would the judges allow it to occur. This depends on what type of matter we are talking about. However, if I were to take a summary conviction matter, for which we have done some restructuring, if the trial is heard by a Nunavut Court of Justice it would be appealed to a single judge of the Court of Appeal, not a judge of the Nunavut Court of Justice. It would go to a judge who is part of a court that is separate. Coincidentally, that judge may also be a member of the Nunavut Court of Justice, but not the same one. From there, it would go to a three-person panel of the Nunavut Court of Appeal.
The Chairman: Therein lies the problem.
Senator Moore: I thought it went to Alberta.
Mr. Bebbington: The actual court for the transitional period is the Alberta Court of Appeal. The Nunavut Court of Appeal will be structured like the N.W.T. Court of Appeal, the core of which is Chief Justice Fraser and the Alberta Court of Appeal. It is supplemented with other judges who have familiarity with the North as well. There is a member of the Saskatchewan Court of Appeal who sits on it. Again, the appeal will not be heard by the same judges. The fact that there will ultimately only be three judges does not limit the pool that is available. The N.W.T. Court of Appeal will draw on the Alberta Court of Appeal and will be supplemented.
The Chairman: You will expand beyond, then, those three judges in Nunavut.
Mr. Bebbington: Yes; absolutely.
The Chairman: That answers my question.
If there are no further questions, I wish to thank you for appearing before us today.
The committee adjourned.