Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 8 - Evidence - June 3, 2010
OTTAWA, Thursday, June 3, 2010
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill S-9, An Act to amend the Criminal Code (auto theft and trafficking in property obtained by crime), met this day at 10:36 a.m. to give clause-by-clause consideration to the bill.
Senator Joan Fraser (Chair) in the chair.
[English]
The Chair: Good morning, honourable senators. Welcome all to this meeting of the Standing Senate Committee on Legal and Constitutional Affairs. We will this morning, as the first item on our agenda, conduct clause-by-clause consideration of Bill S-9, An Act to amend the Criminal Code (auto theft and trafficking in property obtained by crime).
The steering committee agreed that we would conduct clause-by-clause consideration on this bill now. Are honourable senators in agreement that we proceed to clause-by-clause consideration of this bill?
Hon. Senators: Agreed.
The Chair: Opposed?
Carried.
Shall the title stand postponed?
Hon. Senators: Agreed.
The Chair: Opposed?
Carried.
Shall clause 1, which contains the short title, stand postponed?
Hon. Senators: Agreed.
The Chair: Opposed?
Carried.
Honourable senators, shall I group the substantive clauses of this bill? Those would be clauses 2 through 13.
Senator Baker: No.
The Chair: No?
Senator Joyal: No.
The Chair: Oh, very well.
Senator Baker: It is very bad practice.
Senator Angus: It is a bad practice. I would like to go one by one.
The Chair: We shall do it; there are only 13 of them.
Senator Angus: We have had guidelines that we are supposed to as committee. You must have received them.
The Chair: No.
Senator Angus: It is okay.
The Chair: I have not received any guidelines to that effect.
Senator Angus: It is the Milne amendment.
[Translation]
The Chair: Shall clause 2 carry?
Hon. Senators: Agreed!
The Chair: Carried. Shall clause 3 carry?
[English]
Hon. Senators: Agreed.
Senator Joyal: On division.
The Chair: It is carried on division.
Shall clause 4 carry?
Senator Baker: Madam Chair, I wonder if the Department of Justice Canada has anything to say regarding the opposition to the impugned section of this clause. It is fine if they do not. The Ontario Provincial Police referred to it as providing an opportunity for the gang members to be found to be innocent of any charge brought against them using the defence provided in a proposed subclause in this clause.
I also wonder if they can comment on the suggestion made by Sergeant Boyd to this committee that they should have been consulted before the bill came to this point.
It is fine if the Department of Justice Canada does not have any explanation for these charges. I would have to say on division for this clause. However, it would certainly assist members of the Senate or of the House of Commons, who will be receiving this bill after us. They would probably be very interested in receiving an explanation as to why a defence is implanted in this section to which the police forces across Canada object.
The Chair: Honourable senators, there are representatives of the Department of Justice Canada in the room. We could ask them to come to the table to answer Senator Baker's question. The representatives include Mr. William Bartlett, Senior Counsel with the Criminal Law Policy Section; and Ms. Paula Clarke, Counsel at the Criminal Law Policy Section. We welcome you both back to this committee. I think you have heard Senator Baker's query. Will you comment?
William Bartlett, Senior Counsel, Criminal Law Policy Section, Department of Justice Canada: First of all, we certainly did consult with police and law enforcement people active in dealing with auto theft. I do not remember if we specifically spoke with Sergeant Boyd, but we certainly did speak with police witnesses. Therefore, there were consultations concerning this legislation.
Proposed subsection 3 in clause 4 of the bill is not a defence so much as it is part of the description of what the offence proposes to criminalize. It proposes to criminalize removing vehicle identification numbers in circumstances other than the lawful, legitimate, everyday activities that take place involving the repair of vehicles after collisions, vehicle maintenance and modification of vehicles where parts with the VIN on them will be removed. I forget the exact number, but there are something like 18 different VINs stamped on various core parts of an automobile.
In the course of repair and maintenance, particularly during repairs after a collision or a modification of a vehicle, those VINs may be removed. The offence cannot, and I would submit could not, criminalize that kind of perfectly legitimate activity, and does not attempt to do so.
Proposed subsection 1 begins by saying that it is always an offence to remove a VIN. Proposed subsection 3, clarifies by saying that does not extend to all these cases when it is being removed for legitimate purposes. It is the only way we could find to capture the activity that we were trying to criminalize and not the perfectly legitimate activity that I do not think anyone would suggest should be criminalized.
Senator Baker: Mr. Bartlett, I will clarify the objections of the police forces. The offence is to alter, eradicate or remove a vehicle identification number: it is not to remove a part of a car that includes the VIN. The police are not concerned about that. They are concerned about the gravamen of the offence. The gravamen of the offence is the altering of the VIN. As Detective Sergeant Stephen Boyd, Organized Crime Enforcement Bureau of the Ontario Provincial Police said, there is no good reason to alter a VIN except to hide the identity of a car. That is what he told this committee.
Therefore, it is not for the removal of a part containing the VIN. The gravamen is to alter the actual VIN or to eradicate a portion or all of the VIN. Could you address that issue?
Mr. Bartlett: Proposed subsection 1 also covers removal of a VIN. That is what will occur on a regular basis.
There may also be cases where work is being done on a car and some part that has the VIN on it must be repaired. In the course of that repair, the VIN might be somewhat altered or partially obliterated. However, removal will occur on a regular basis.
Proposed subsection 3 says what I do not think anyone would contest: No one wants to criminalize activity that involves regular maintenance, repair and other work done for a legitimate purpose, including modification. Those are the sorts of things that occur every day in body shops and garages where a VIN somewhere on the vehicle will be affected in some way. Removal will probably be the normal case, but there might well be cases where a VIN is affected by work done on a part that has the VIN stamped on it.
Senator Baker: Finally, the police said that "without lawful excuse" covers that. That is already in the section. It could be "without lawful justification or excuse." It could be "without reasonable excuse," but it is "without lawful excuse." That covers all the plethora of references you just made to VINs being changed and so on. That is the point made by police. Do you have anything to add to that?
In other words, "without lawful excuse" is already there. They wonder why you are imposing. Yes, it is called an exception, but the police told this committee it could be used as a defence. They did not mean a defence in the real term. They meant you could use that section as a defence.
Mr. Bartlett: First of all, I would observe that if what is in proposed subsection 3 is included in "without lawful excuse," then adding it does not add something that would not otherwise be there.
Senator Baker: So why is it needed?
Mr. Bartlett: If the police are concerned about proposed subsection 3 somehow providing an out that should not be there, they presumably should not be quite so satisfied that it is already covered under "without lawful excuse."
"Without lawful excuse" is a defence, a reverse onus and it is an excuse for activity that you are otherwise criminalizing by the offence. Proposed subsection 3 is not an excuse or a defence. It is part of the description of the offence. Proposed subsection 1 contains a very broad prohibition and proposed subsection 3 has that area you are carving out, so that what is left is what is being criminalized.
"Without lawful excuse" is a relatively common provision in the Criminal Code, but its meaning is rarely particularly clear; it is a rather vague phrase. It is usually used to cover those rare cases that you cannot envisage and describe in the section.
Here we can clearly envisage that this sort of activity will occur. We do not want to criminalize it. In our view, you cannot leave that sort of thing to the vagaries of "without lawful excuse," which puts the onus then on the person who might be charged and might have to say "but I was carrying out the legitimate repair of a vehicle."
We have to start out by saying that, if they are carrying out legitimate repair of a vehicle, the offence simply does not cover them.
Senator Baker: Yet it is not in sections 86, 87, 89 or 106. It just says "without lawful excuse" without providing an explanation of what is covered in "without lawful excuse."
The police are suggesting to us that this is a rather novel approach you have developed. They cite sections of the Criminal Code that are similar such as, for example, the serial number on a gun. I think that is section 106, and there is no justification for that, except if the gun is really old and, by use, the number may be deteriorated. However, it then says that it is an offence for you to have it. Sections 86, 87 and 89, are recent provisions that we have put in the Criminal Code. It says "without lawful excuse." There is no section that says, "Here is what is covered by the lawful excuse."
Mr. Bartlett: Proposed subsection 3 is not attempting to describe what is covered by the lawful excuse.
Senator Baker: What is it there for, then?
Mr. Bartlett: It is part of the description of what the offence is not attempting to criminalize. The words "without lawful excuse," as a residual matter, cover those cases that may, in a particular set of facts, constitute something that the court would recognize as a lawful excuse. In proposed subsection 3, we are describing what the offence does not cover. It is a construction that derives from the fact that we are trying to capture criminal activity that is difficult to describe. We have used other provisions in earlier versions, where you remove it for the purpose of disguising the vehicle. That was of great concern to Crown attorneys because it requires that you prove the specific intent of the person before the court, and that is always a difficult thing to do.
This is the construction that we devised in order to describe the legitimate activity that is not captured by this section. I do not think any of your police witnesses would suggest that what is described in proposed subsection 3 should be criminalized.
The Chair: Senator Baker?
Senator Baker: I will end on this final question.
The head of the auto crime division in Ontario, Detective Sergeant Boyd, testified that he had also spoken to Crown attorneys, and every Crown attorney to whom he spoke said that they had the same reservation about this impugned subsection of this section of the Criminal Code. He gave the example of Eric Lindros and the theft of his Corvette. He said that the excuse was that they were modifying the vehicle.
You will notice that this proposed section explicitly allows vehicle modification. The gentleman in this shop said, "My excuse is that I was given orders to modify this vehicle." That, he suggested, was a lawful excuse. Well, it is not a lawful excuse now, but it is now being implanted in the legislation. He says the Crowns and the police forces; you are saying that you consulted with these people and they are wrong. However, these are the people who lay the charges. You can understand our concern when we hear from people who lay the charges and we are saying that the police probably have a good point. However, I understand your point. It is an important point.
The Chair: Senator Baker, it is an important point. It was raised by numerous witnesses, but Mr. Bartlett has made the position of the department clear on this particular point, which we have now well aired.
Senator Baker: Oh, yes.
The Chair: Does any other senator wish to address this matter? No? Senator Robichaud? Senator Joyal?
Senator Joyal: The way I understand the interpretation of it, Mr. Bartlett, is that in proposed subsection 353.1(1), you have a general, open excuse, which is "without lawful excuse." That could mean without proper reasons that would be accepted normally in the course of things. However, you then go back to clause 3 of the bill and say, "Beside that, we want to tell you that if you are just modifying a vehicle, it is okay." You are doing two things in the same proposed section. That is how anyone reading this will try to understand it; that is, the common sense, first-sight interpretation. If you say I am wrong — and I do not think I am stretching the words too far when I propose the interpretation, which seems to be the first reading of it — then any person involved in the implementation of this act may have the same reaction as me, and then your objective, in my opinion, is not met.
Mr. Bartlett: The exception, which is part of describing what proposed subsection 1 is not attempting to criminalize, refers to legitimate purposes, including modification of the vehicle. If Eric Lindros's vehicle was being modified on his instructions, then I think everyone would agree that was a perfectly legitimate activity. If it is being modified in a chop shop, that is something else. We have talked to police and Crowns, and they do feel that this activity is something that they can deal with because the cases that they will be involved with will be those cases where the criminal context we are attempting to capture is present.
"Without lawful excuse" is a vague phrase. It has meaning in particular sections that the courts have developed over the years, but it does not have any particularly clear meaning in any case, and it is not the stuff that occurs all the time. It is the kind of phrase that you put in to cover those circumstances that will occur relatively rarely.
The Chair: Senator Joyal, at this point I think this discussion is becoming repetitive. We have here a clear exposition of different perspectives.
Senator Joyal: It is on the record and we will see how the Crown attorneys and the bill will be implemented on this proposed section.
The Chair: We will indeed.
Senator Wallace: Mr. Bartlett, when I listen to the discussion, I do not see this as complicated at all. It seems that it is obvious that for a charge to be laid under this section there would have to be criminal intent. There would have to be the mens rea element. As I read this section, it is simply clarifying, for those in the real world who will be involved in some way with vehicles in a legitimate way, in the maintenance of vehicles, that they need not be concerned that the mere fact they have removed or in some way altered that VIN as part of that maintenance, that they would be subjected to criminal prosecution. There would not be the criminal intent. There would not be the mens rea element.
At times, we find with legislators that there is criticism that the legislation is not specific enough. The intent of the legislators is not clear and it is left for the courts to determine it. In a case like this, as I read it, we are being very clear. We are making it clearly understood to a person on the street. Someone involved in the maintenance of vehicles could read that section and realize that he or she would not be incurring criminal charges.
The Chair: I will repeat what I just said to Senator Joyal: I think that we have now had very clear explanations of two perspectives on this proposed section of this bill. I think we should proceed with the vote.
Senator Joyal: I think we should.
Senator Wallace: I think we can, but I was going to come to a question.
Mr. Bartlett, is there anything that I have said with which you would disagree?
Mr. Bartlett: No.
Senator Wallace: Good.
Senator Baker: There is nothing he said that you would disagree with, either.
Senator Wallace: I will not ask Senator Baker that question.
The Chair: Mr. Bartlett, I think, has indicated that he does not disagree with Senator Wallace.
Colleagues, shall clause 4 carry?
Some Hon. Senators: Agreed.
Senator Baker: On division.
The Chair: Carried, on division.
[Translation]
Shall clause 5 carry?
Hon. Senators: Agreed.
The Chair: Carried.
[English]
Shall clause 6 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 7 carry?
Hon. Senators: Agreed.
The Chair: Opposed?
Carried.
Shall clause 8 carry?
Hon. Senators: Agreed.
The Chair: Opposed?
Carried.
[Translation]
Shall clause 9 carry?
Hon. Senators: Agreed.
The Chair: Carried.
[English]
The Chair: Shall clause 10 carry?
Senator Joyal: On clause 9, Senator Baker and I pointed to the fact that there is a discrepancy between the French and English version of the Criminal Code. We asked the department to come back on this clause. Why not use this opportunity to make the two versions similar.
The Chair: Senator Joyal, we just adopted clause 9. Are you asking that we reopen clause 9?
Senator Joyal: Yes, because we have the witness here. We can have an answer on the record.
The Chair: Before we actually reopen it for a vote —
Senator Joyal: I am not asking to reopen it for a vote. I am asking to reopen it for an explanation.
The Chair: I think that is fair, colleagues, because there was a genuine question about the structure of the English and French versions in clause 9.
Senator Joyal: I am not reopening the vote.
The Chair: You can always vote to reopen a clause, but that is not what is being asked for now. However, before proceeding to clause 10, perhaps you could address the difference in structure between the English and the French versions in clause 9.
Mr. Bartlett: We have looked at the two different structures of 1.1 here and we have consulted with the Legislative Services Branch. We are satisfied and they are satisfied that there is no difference in the effect of the two different constructions. This is an example of co-drafting. Parallel structures are still required where you are dealing with an offence or a prohibition or some provision where a reference could be made to a paragraph or a subparagraph and you have to have the same paragraphs and subparagraphs in the two language versions so that your reference will be consistent as between the two.
However, in this case, it is really just a stylistic matter. The two subsections that you see in English would not have to be there. You could simply have one very long sentence, as the French has, that covers everything that is in proposed paragraph (b). In earlier times, you would have seen exactly the same structure because, generally, the English version was produced first and the French version was a translation of that version. For some time now, we have had a system of co-drafting where the drafters of each official language draft the text in the manner that is most appropriate for that language.
Parallelism in the structure is still required where you might have a reference, so there is some functional aspect to the structure. Here there is not a functional aspect to it. The English language drafters simply chose to break up what would otherwise be a long sentence by adding these subparagraphs. The French language drafters obviously felt it was not necessary to do so in the French version. They are both to exactly the same effect and the different structure in this case does not create any problem in terms of the application of the provision.
Senator Joyal: I agree with you that the substance is similar; they lead to the same charges, the same offence and the same circumstances in both the English and the French versions. The major point is more a procedural one, which is that when the Crown lays the charges, whether in English or in French, he or she would lay the charges with different labelling, in the context of all the subparagraphs we have in the French version but that we do not have in the English version.
Paula Clarke, Counsel, Criminal Law Policy Section, Department of Justice Canada: However, this is not a charge, so that concern does not exist for this proposed paragraph. You are right, though; normally if it is an offence or prohibition, it must be parallel drafting. That does not apply in this situation. There is no error. There may be a preference to convert it to a parallel structure between the English and French, but as it stands now, it is correct.
Mr. Bartlett: This deals with the disclosure of income tax information and when the Attorney General can disclose. It does not create an offence. It is not something that will be implicated in indictments or some case where the difference in the structure could have some impact in terms of references in an indictment. It is strictly instructions to the Attorney General as to the disclosure of information.
Ms. Clarke: I do not believe it would have been drafted like this today, because there is a general trend towards parallelism. There does remain the flexibility for drafters, when they are drafting in their own language, in English or in French, to use the style that best reflects the syntax and grammar of their language. You do not want to eliminate that discretion for drafters. It is just a stylistic issue, not a substantial issue.
The Chair: I think I can legitimately say that a good number of us would suggest that you gently suggest to any drafters that parallelism is a very good thing, if only for the assistance of the legislators who have to try to understand what is being placed before them.
Ms. Clarke: If I could make one more point. This was drafted over 10 years ago and I do not believe it would be drafted this way today.
Mr. Bartlett: We will certainly convey your message to the drafters.
Senator Joyal: That is fair. We are just suggesting that since clause 9 is open, we use the opportunity to make it balanced. That is essentially what we are suggesting. We do not want to change the substance; we just want to establish what you are doing today in comparison to what we were doing 10 years ago. That is essentially the purpose of the question we raised.
Ms. Clarke: We are neutral on that issue. We have no preference either way.
Senator Baker: The problem is not just for a legislator but for a judge. You can imagine a judge saying "as is mandated by section 462.48(1.1)(b)(iii) in English and section 462.48(1.1)(b) in French." In other words, in identifying the section the judge is referring to in the Criminal Code, he says this in the English version and that in the French version. That is really not conducive to efficient maintenance and operation of the Criminal Code. That was our other point. It is not just for the legislators but for the judges, and it leads to confusion.
Mr. Bartlett: It would be our view that while there is clearly a different structure in terms of not having the subparagraphs, there is no real risk that anyone applying this section would be confused. As I say, if you simply take out the subparagraphs from the English, you simply have one very long sentence that is exactly the same as the French, and that is what proposed paragraph (b) covers.
The Chair: Does any other senator wish to intervene on this matter?
Senator Wallace: Just to say that I think the point has been made. I do not think there is a difference of opinion from Ms. Clarke or from Mr. Bartlett as far as looking into the future with future drafting. We have approved clause 9 and I would suggest we move on.
The Chair: Senator Joyal?
Senator Joyal: No.
The Chair: Thank you, colleagues.
Shall clause 10 carry?
Hon. Senators: Agreed.
The Chair: Opposed?
Carried.
Shall clause 11 carry?
Hon. Senators: Agreed.
The Chair: Opposed?
Carried.
[Translation]
Shall clause 12 carry?
[English]
Senator Joyal: On division.
The Chair: Opposed?
Carried, on division.
Shall clause 13 carry?
Hon. Senators: Agreed.
The Chair: Opposed?
Carried.
Shall clause 1, which contains the short title, carry?
Hon. Senators: Agreed.
The Chair: Opposed?
Carried.
Shall the title carry?
Hon. Senators: Agreed.
The Chair: Opposed?
Carried.
Shall the bill carry?
Hon. Senators: Agreed.
Senator Joyal: On division.
The Chair: Opposed?
Carried, on division.
Does the committee wish to consider appending observations to the report?
Senator Wallace: No.
The Chair: Is it agreed that I report this bill to the Senate?
Hon. Senators: Agreed.
The Chair: Carried.
Thank you very much, colleagues.
Mr. Bartlett and Ms. Clarke, thank you very much. You are now free to go. Members of the committee are not.
Colleagues, we shall now proceed to an in camera session for our discussion of a draft report.
(The committee continued in camera.)