Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 6 - Evidence - May 6, 2010
OTTAWA, Thursday, May 6, 2010
The Standing Senate Committee on Legal and Constitutional Affairs is meeting today, at 10:42 a.m., to study Bill S- 2, An Act to amend the Criminal Code and other acts.
Senator Joan Fraser (Chair) in the chair.
[Translation]
The Chair: The Standing Senate Committee on Legal and Constitutional Affairs is meeting this morning to continue, and perhaps conclude, its study of Bill S-2, An Act to amend the Criminal Code and other acts. As agreed to by the committee members yesterday, we will proceed to clause-by-clause consideration of the bill.
[English]
Is it agreed that the committee proceed to clause-by-clause consideration of Bill S-2, An Act to amend the Criminal Code and other acts?
Hon. Senators: Agreed.
The Chair: Colleagues, I think you have received copies of proposed amendments. This is a long bill. The first amendment is to clause 5.
After we move on the title and whatnot, do senators agree that we group clauses 1 to 4, et cetera?
Hon. Senators: Agreed.
The Chair: Shall the title stand postponed?
Hon. Senators: Agreed.
The Chair: Carried. Shall clause 1, which contains the short title, stand postponed?
Hon. Senators: Agreed.
The Chair: Are any opposed? Carried. Shall clauses 2 to 4 carry?
Hon. Senators: Agreed.
The Chair: It is agreed. Shall clause 5 carry?
Senator Baker: Madame Chair, members have received a copy of the proposed amendment to clause 5. For honourable senators' information, from the wording of the amendment, it is very difficult to see exactly what the amendment seeks to accomplish, but I will explain.
This first amendment, on pages 5 and 6 to clause 5, is revisited when we get to the National Defence Act at clause 47; it is the identical amendment to two clauses of the bill.
As honourable senators are aware, the first clause deals with amendments to the Criminal Code and the next clause deals with appeals to the National Defence Act. I am proposing that the same amendment be made to the two acts.
The amendment was originally intended to be made by Senator Joyal. He is inadvertently absent. He could not rearrange an invitation to lecture on constitutional law at a university in Paris, so I am making the amendment in his stead.
I strongly support the amendment. To illustrate this support, I draw honourable senators' attention to two matters referred to during the committee hearings. One was the report of the Standing Committee on Public Safety and National Security, regarding the statutory review of the Sex Offender Information Registration Act. This was tabled in Parliament in December 2009. The House of Commons all-party committee recommended the following:
The Committee recommends that the Sex Offender Information Registry Act and related legislation be amended to provide for the automatic registration of offenders found guilty of offences listed in paragraph 490.011(1)(a), (c), (c.1), (d) or (e) of the Criminal Code . . . .
That is followed by the designated offences of the Criminal Code. This the government has done in this bill. In other words, that first section of the recommendation is fulfilled in the bill. However, the House of Commons all-party committee went on. There is a comma after "Criminal Code,'' and then it says:
. . . except in rare circumstances that warrant a departure from this rule when the judge is convinced that the impact of inclusion in the registry on the offender's privacy and liberty would be grossly disproportionate to the public interest. SOIRA must clearly provide that, in these rare circumstances, the court must justify its decision.
Then the recommendation goes on to one more sentence, which is also accomplished in this bill:
Offenders found guilty of an offence listed in paragraph 490.011(1)(b) of the Criminal Code for whom the Crown has demonstrated beyond a reasonable doubt that the offender intended to commit a sexual offence listed in paragraphs 490.011(1)(a),(c),(c.1),(d) or (e) shall be subject to an order. . . .
This was Senator Carignan's point regarding someone who is convicted of break and enter for the purpose of intending to commit an indictable offence; to wit, in this case, sexual assault. Therefore, the bill encompasses two of the recommendations of the House of Commons committee, but the bill removes from the act the present two sections of the act that satisfy the recommendation of the House of Commons committee. It takes out subsections 4 and 5 of the first amendment that I am proposing, which would keep it in the act. In other words, the Crown does not have to make an application to the court anymore. It is automatic; the person is put on the registry. However, in so doing in this bill, we have removed the exception of allowing the judge, the court, to make a determination based on "grossly proportionate'' to the intent of the legislation.
If you all understand what this amendment is about — and I assume you do — Senator Joyal's position, which I am putting forward, is supported by the Quebec bar. Annexed to this report is a motion passed by this committee to attach the opinion of the Quebec bar to the report. Madame Chair, I think you will verify that.
The Chair: To the proceedings.
Senator Baker: Yes, to the proceedings, so that someone reading the proceedings will know what the Quebec bar said to Senator Marjorie LeBreton, Leader of the Government in the Senate. The letter was also sent to the cabinet minister in the other place and sent to this committee. The Barreau du Québec said:
The Barreau opposes the elimination of the exception provided in subsection 490.012(4) of the Criminal Code. The discretion given to the court by that provision is essential for individualizing decisions that have severe, intrusive consequences for a person.
Then the bar says in even stronger terms, in the last paragraph of its letter to this committee:
The Barreau du Québec reiterates that a judicial review of the assessments of the interests of the individual in question and the interests of society should be possible at the time the order to comply with the SOIRA is made.
During their presentation, they quote case law in which their position is supported by the Quebec Court of Appeal, the Newfoundland and Labrador Court of Appeal and by the Alberta Court of Appeal. They even quote Chief Justice Clyde Wells in his determination in one of his cases in the letter from the Quebec bar.
It is very clear what the amendment does. The amendment will keep in the act the judicial discretion regarding certain rare cases. The judge will still have to consider it automatically each time a case comes up and a conviction is made. During sentencing, he will put the person on the registry, except in the rare cases where he finds it is disproportionate to the public interest.
That recommendation came from the House of Commons. It was not in the bill. The bill removed the exception, and now the Barreau du Québec has reiterated what the courts of appeal have said, that it is necessary in the legislation. That is the intent of the proposed amendment I am about to make. You have the amendments before you.
Senator Angus: I do have the act, but it is just that in your amendment —
The Chair: Senator Angus, could we hold discussion until after?
Senator Angus: It is not discussion. Senator Baker referred to subsection 4 in his comments, and I do not see it referred to in the amendment.
Senator Baker: Senator Angus, I think the way you do in that when I wrote up the amendment I included the exception. Senator Angus, the Law Clerk and Parliamentary Counsel in the Senate, for whom I have a great deal of respect, suggested that we do it a different way. Lawyers at that office suggested that we not include the exemption in the amendment but keep the exemption in the Criminal Code and have the references to what is changed before it changed without disturbing subsections 4 and 5, which are already in the Criminal Code section.
The Chair: Senator Baker, could you move your motion?
Senator Baker: The motion is:
That Bill S-2 be amended in clause 5,
(a) on page 5, by replacing line 6 with the following:
"5. (1) Subsections 490.012(1) to (3) of the Act are replaced by''; and
(b) on page 6, by replacing line 15 with the following:
"(2) Section 490.012 of the Act is amended by adding the following after subsection (5):
(6 ) If the court does not consider the matter of making an order'',
I have examined that amendment, and it accomplishes exactly what I propose to accomplish — and Senator Joyal, the Barreau du Québec and the House of Commons committee wishes to accomplish — and it is so worded in that manner.
[Translation]
The Chair: Senator Baker has moved that Bill S-2 be amended in clause 5(a) on page 5, by replacing line 6 with the following:
5. (1), Subsections 490. . .
[English]
Dispense, everyone? Discussion, Senator Wallace followed by Senator Runciman.
Senator Wallace: Bill S-2 has been presented to improve the investigative tools that the registry can provide for investigative purposes for law enforcement and to provide additional protection for the public.
We have heard from many witnesses — in particular, from witnesses who represent victims' groups — who have described graphically the impact that sexual offenders have had upon not only victims but also families. I know we all feel a very strong need to take appropriate action to provide law enforcement with the tools to improve the protection of the public. We all share the desire to protect as many as possible from these sexual offences.
One of the key elements of the bill is that the designated offences as set out in the bill would require mandatory registration of those sexual offenders in the registry. The reason for that is — and this was confirmed by the minister and other witnesses — that information is required on as broad a basis as possible, not in a reckless fashion, so that information regarding sexual offenders is available to police enforcement and as few as possible can fall between the cracks. If they do, it is the public and the victims who will suffer.
The representatives from law enforcement have given their strong support for this mandatory registration component of Bill S-2. We know that there has been a significant period of consultation between the Department of Public Safety and law enforcement and departments of attorneys general across the country. We know that there is strong support for the bill in its present form.
Senator Baker, you mentioned that your amendment would apply to certain rare cases and that judicial discretion would continue for these certain rare cases. Senator, the words of Dr. Earls, yesterday's witness echo in my ears.
If you will recall, Dr. Earls has had many years of experience in dealing with the treatment and consideration of sexual offenders. During that process, he consulted with approximately 2,500 offenders. In his words, after all of that experience, he is unable to determine what is in the minds of sexual offenders. He was unable to say, with any degree of certainty, what a sexual offender may do in the future.
Against that backdrop, my view is that it is extremely important that we maintain the mandatory registration provisions contained in the bill. I believe this is important for the protection of the public. Senator, I am not able to support your proposed amendment.
Senator Runciman: I am not sure I can add a great deal to Senator Wallace's comments. In some respects this goes against the grain — there is no question about that — in terms of the intent and, in some respects, could be found out of order and in contradiction to the intent of the government in the legislation.
One of the important aspects brought to our attention during the deliberations was the fact that over 40 per cent of sex offenders are not captured by the registry. I do not think we ever received a clear explanation as to why that has occurred. There were suggestions that Crown counsels, perhaps, are not being as attentive as they should be in terms of making applications, and that this could be part of the plea bargaining process. There was a whole range of issues related to why so many people are not being captured by the registry. The intent is to turn this into an administrative process; inclusion will be automatic.
I understand the concern expressed by the Quebec bar — at least I think I do — with respect to judicial discretion. However, this has been a growing concern across this country with respect to what many perceive as the abuse of discretion. We have seen this government respond to that concern with the reaction to the two-for-one sentencing. We are seeing it now with the drug legislation, which has been reintroduced in the House of Commons. This bill addresses that in a way that, I think, most Canadians will supportive. Unfortunately, as much as I like you, senator, I cannot support your amendment.
Senator Carstairs: I will support the amendment. I will support the amendment because it does not, in my view, eliminate the automatic registration. The automatic registration will happen, unless a judge says that the case does not justify an automatic registration and has to give written reasons.
It is for those very narrow, very rare cases. We heard testimony about the 18-year-old boy — and I still think of 18- year-olds as boys, but maybe that is because I am 68 years of age — who takes a picture of the 17-year-old girlfriend in a compromising position and puts it on his phone. That young man can be charged with pornography, even though the girl and the boy agreed that the picture should go on the boy's phone. This is a situation which, hopefully, does not happen often but I suspect happens more often than we would like. I am not sure that young man should face automatic registration for life. Although he can use certain processes, he never actually gets off the registry.
[Translation]
Senator Poulin: Thank you, Madam Chair. As a critic of this Bill, I have had the opportunity to think about and analyze it for a long time. I completely agree with the goals proposed by the government. However, I support the amendment tabled today by Senators Joyal and Baker before the committee — and I think Senators Baker and Carstairs explained it extremely well — because, in the end, the great tradition of judicial discretion in Canada is advantageous to our system, which is highly respected worldwide. Judicial discretion has always served justice, the victims and the accused well. That is why I feel that this amendment, tabled by Senator Baker, does not prevent us from reaching the government's goal, but rather increases equality and heightens justice, which we all look for in our justice system.
Senator Boisvenu: Exceptions in the Criminal Code never favour the victims; they always favour the criminals.
Senator Baker, I am not surprised that the Bar is supporting the proposed amendment. The Quebec Bar has more members who are defence counsels than those who are Crown attorneys.
I quite dislike exceptions in the Criminal Code. I will give you two examples of what used to be an exception and is now the rule.
First, counting time spent in pre-sentencing custody as double time should have been an exceptional measure, but it eventually became common practice.
Second, concurrent sentences were also supposed to be an exception. Here is a hypothetical situation: a man rapes a woman several times. After determining that the victim, the criminal and the circumstances were the same in all instances, the judge pronounces three sentences of 24 months each. However, the sentences are to be served concurrently.
I am not a big fan of exceptions because they never favour the victims. In the long run, it becomes common practice for judges to recognize these exceptional rights for criminals. Therefore, I cannot support your amendment.
If, in one or two years' time, we are faced with a hypothetical situation where an 18-year-old man grabs a lady's behind, then we will see. However, as things stand, as a senator representing victims of crime, I cannot agree to exceptions because they are opening the door to new practices that will eventually become standard.
[English]
Senator Lang: Senator Poulin, we have had judicial discretion. We have a system in place now that has been very discretionary, to the point where over 40 per cent of those who have been sexual offenders are not registered. I suggest to you that we should have no discretion. Obviously, if we go back to the premise, though maybe not as discretionary as it was before, I think we are defeating the purpose of the bill.
The other point is that the bill, as written, and as indicated by your colleagues, there was support in the house for the bill as it has been presented. There is a minority government. It is important that this legislation be passed. No bill is perfect. I believe the chair has stated that on numerous occasions. No matter how much we want to be the architects of the perfect bill that, unfortunately, will not happen. However, I think we are well on our way to that point. It is important and imperative that we deal with the politics of today and the ability to get this legislation in place so it can do the job our law enforcement people are asking for.
The other point, which has not been discussed by my good friend Senator Baker, is that the registry is not a public registry but a confidential registry. Subsequently, as difficult as it may be if a person finds his or her name on that registry — and it does provide an imposition, unfortunately for those who have done something untoward — at the end of the day, it is not a public document or public information, and that is important.
We have come up with a Canadian solution as opposed to the situation in the United States in which it becomes an open book. That, in part, should give Senator Baker some comfort from the point of view of his concern about the offender as opposed to the victims.
From our point of view, it is important that the bill be passed as written for this particular section. If we do otherwise, I think we have failed in our responsibilities.
[Translation]
Senator Carignan: My comments will be rather brief. I support my colleagues, especially Senator Boisvenu. I disagree, however, with my Bar. When a position must be adopted, I rather frequently disagree with the Bar.
For the record, I want to point out a technical difference between the French and English texts. In order to ensure that the minutes of the proceedings are accurate, please note that in the English version, the text stops at "an order,'' and in French, it continues to say "an order under sections (1) or (3) when. . .'' It would perhaps be well to clarify this.
I would like to point out, as an introduction to my speech next week on judicial bilingualism, that I did not have to be bilingual to notice the difference.
The Chair: This is often the case, since the English the French versions are not always of the same length. We often have to use more lines in French to convey the same idea as in English. In an amendment, more lines must be replaced in French than in English. I think that is the case here.
Senator Carignan: This is not a matter of the number of lines; it is rather a question of the wording in clause 6. The French version states, "under sections (1) or (3) when,'' but there is no English equivalent.
The Chair: Yes, let me have a look. We need the actual legislation to check this. We are talking about section 490.012.
[English]
Senator Baker: No, I seldom disagree with Senator Carignan; I was just searching for a reason to disagree.
[Translation]
The Chair: Does anyone have a French version of the Criminal Code handy?
Senator Carignan: I do not have mine.
The Chair: No? From now on, we will be sure to always have a copy on hand. Is there one in my office?
[English]
While we look for that, would colleagues be willing to suspend discussion of clause 5 and move to consideration of clauses 6 to 46?
[Translation]
Senator Carignan: I do not think that this fact changes the substance of our debate. I think that people are ready to vote. The only issue is the way the amendment is worded. If there is a difference between the two versions, we must ensure that it does not appear in the minutes of the proceedings.
The Chair: I would be willing to bet that the inconsistency is due to the reason I mentioned. However, we cannot vote on an amendment if the amendment truly does not state the same thing in the two languages. So, since the issue was raised, we must resolve it before we vote. If my colleagues agree, we can postpone the vote on the amendment and on clause 5.
[English]
Shall clauses 6 to 46 carry? Is it agreed?
Hon. Senators: Agreed.
[Translation]
The Chair: We now have the Criminal Code in French and in English. So we should compare the two versions.
[English]
I shall ask the researchers from the Library of Parliament to do that and will proceed, suspending consideration of clause 47.
Hon. Senators: Agreed.
The Chair: Shall clauses 48 to 65 carry?
Hon. Senators: Agreed.
The Chair: It is agreed. We will now await the outcome of expert research.
Senator Baker: As an intervention, I am sorry. I take responsibility for this, but in the English version it simply says the making of an order. In the French version it says the making of the order under subsections (1) to (3). I understand your point that we must be exact in our process, especially if the House of Commons wishes to put forward the same amendment, but I think that is the simple solution.
The Chair: I am virtually certain, because you have this checked by the law clerk's office and they do not usually lead us astray.
Senator Baker: No, never.
The Chair: However, the question has been raised, and I will not happily proceed to a vote on something until we have an answer. I am sorry about that senator.
Senator Baker: The answer is, as I put forward, an error in which the French version says if the order is made from subsections (1) to (3) and the English only says if the court does not consider the matter of making an order. Now the order we are referring to is under subsections (1) to (3). It says exactly the same thing.
The Chair: The Criminal Code says that. You do not have a French copy of the amendment?
Senator Wallace: No.
The Chair: It should be on the reverse.
Senator Baker: As Senator Carignan says, it is not a major point, but if the vote were to succeed, certainly one would have to conform to the other. It does conform. It is just that it says in the French version, "if the order is made under the previous subsections (1) to (3),'' but the English subsection says, "if an order is made under the previous section.'' It is my mistake.
The Chair: No, I doubt it is a mistake, Senator Baker. I believe it was done because inserting the French translation of the words in English "if the court does not consider the making of an order'' would take more than one line. Therefore, we would have to amend the requisite number of lines to come out even at the end in French.
Senator Baker: It is not always even in French.
[Translation]
Senator Carignan: I think the error was made when the amendment was drafted. If you compare the two versions of the motion respecting section 47, the reference to subsections (1) or (3) appears in French and in English, so there is no discrepancy. I think that the problem occurred when the proposed amendment was drafted.
[English]
Senator Wallace: If there is an error, I would like to do whatever must be done to rectify it today, so that we can deal with the entirety of the bill.
Senator Baker: I cannot amend my own amendment under the Rules of the Senate. However, it is simply a matter of removing from the French version the reference to paragraphs 1 to 3.
The Chair: I can think of another way to do it, colleagues. If we were to consider the possibility of a parchment error, we could authorize the clerk of the committee, upon consultation with the law clerk and the steering committee, to certify it as such and correct it, if it turned out that there were such an error.
Senator Carstairs: So moved.
The Chair: I think we should do that. I will get to the motion in question at the end.
Shall the amendment carry?
Senator Angus: Wait a minute. There are some other interventionists.
The Chair: I apologize. Senator Carignan completely rattled me.
Senator Angus: I agree with my colleagues regarding the amendment, but I add the fact that I am a member in good standing of the Barreau du Québec. When I saw the letter, I was somewhat surprised. I read it carefully. I have not consulted with all the thousands of members of the Barreau du Québec but I consulted with many, as an academic exercise.
We understand how these matters work; there are subcommittees of the bar. Some represent the defence bar, and so on, as said by my colleague, Senator Boisvenu. I have no problem morally, ethically or professionally in voting against the amendment, knowing full well I am a member of the Barreau du Québec. Thank you.
The Chair: Senator Baker, do you wish to respond to the comments?
Senator Baker: No, and I will amend Senator Angus' speech and add that he is a distinguished member of the Quebec bar.
I think there have been excellent interventions on both sides of this issue. I would suggest that a vote on clause 5 will also determine the matter as far as clause 47 is concerned.
The Chair: Let us vote on this amendment first.
Shall the amendment clear?
Some Hon. Senators: Yea.
Some Hon. Senators: Nay.
The Chair: Those in favour of the amendment will signify by saying "aye.''
Some Hon. Senators: Yea.
The Chair: Those opposed?
Some Hon. Senators: Nay.
The Chair: I think we will agree with the "nays'' have it. Do you wish a recorded vote, Senator Carstairs?
Senator Carstairs: I wish a recorded vote, please.
The Chair: The clerk will call the roll.
Shaila Anwar, Clerk of the Committee: The Honourable Senator Angus.
Senator Angus: Nay; against the amendment.
Ms. Anwar: The Honourable Senator Baker, P.C.
Senator Baker: Yes.
Ms. Anwar: The Honourable Senator Boisvenu.
Senator Boisvenu: No.
Ms. Anwar: The Honourable Senator Carignan.
Senator Carignan: No.
Ms. Anwar: The Honourable Senator Carstairs.
Senator Carstairs: Yes.
Ms. Anwar: The Honourable Senator Lang.
Senator Lang: No.
Ms. Anwar: The Honourable Senator Patterson.
Senator Patterson: No, with respect.
Ms. Anwar: The Honourable Senator Peterson.
Senator Peterson: Yes.
Ms. Anwar: The Honourable Senator Poulin.
Senator Poulin: Yes.
Ms. Anwar: The Honourable Senator Runciman.
Senator Runciman: No.
Ms. Anwar: The Honourable Senator Wallace.
Senator Wallace: No.
The Chair: Yeas four, nays seven, abstentions one, which is me. The amendment is defeated.
Shall clause 5 carry?
Hon. Senators: Agreed.
The Chair: Senator Baker, I believe you said that, consequent to that vote, you would withdraw your proposal for an amendment on clause 47.
Senator Baker: Yes, I would have to withdraw it because we would not want the National Defence Act to say something the Criminal Code did not say.
The Chair: Very well. Shall clause 47 carry?
Some Hon. Senators: Agreed.
Senator Carstairs: Nay.
The Chair: Carried, on division. Shall the schedule carry?
Hon. Senators: Agreed.
The Chair: Shall clause 1, which contains the short title, carry?
Hon. Senators: Agreed.
The Chair: Shall the title carry?
Hon. Senators: Agreed.
The Chair: Carried. Shall the bill carry?
Hon. Senators: Agreed.
The Chair: It is agreed.
Does the committee wish to consider appending observations to the report, as had been previously discussed?
Senator Carstairs: Yes.
The Chair: We shall go in camera for that discussion.
(The committee continued in camera.)
(The committee resumed in public.)
The Chair: Honourable senators, the committee having decided to not append observations, is it agreed that this bill be reported to the Senate?
Hon. Senators: Agreed.
The Chair: I will do so this afternoon.
(The committee adjourned.)