Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 26, Evidence - February 18, 2015
OTTAWA, Wednesday, February 18, 2015
The Standing Senate Committee on Legal and Constitutional Affairs, to which were referred Bill C-47, An Act to correct certain anomalies, inconsistencies and errors and to deal with other matters of a non-controversial and uncomplicated nature in the Statutes of Canada and to repeal certain provisions that have expired, lapsed or otherwise ceased to have effect; and Bill C-479, An Act to amend the Corrections and Conditional Release Act (fairness for victims), met this day at 4:16 p.m. to give clause-by-clause consideration to the bills.
Senator Bob Runciman (Chair) in the chair.
The Chair: Good afternoon and welcome, colleagues, invited guests and members of the general public who are following today's proceedings of the Standing Senate Committee on Legal and Constitutional Affairs.
As a reminder to those watching, these committee hearings are open to the public and also available via webcast on the parl.gc.ca website. You can find more information on the schedule of witnesses on the website under "Senate Committees."
Before we begin, I want to mention we have a new member joining the committee, Senator White, who brings his extensive policing experience at the federal and municipal levels to our committee deliberations. Welcome back to the committee. It's good to have you here.
Today we are completing our study of two bills. Number one is Bill C-47, the proposed "Miscellaneous Statute Law Amendment Act, 2014." We will begin with clause-by-clause consideration of Bill C-47.
As a reminder to everyone, the committee studied a proposal of this legislation that was tabled in the Senate in May of last year. The committee held three meetings on the proposal and received a number of written responses. After completing the study, the committee tabled a report in the Senate in November of last year and made several recommendations. Bill C-47 was introduced in the Senate in December of last year and is the result of the recommendations to the proposal made by both Senate and house committees.
We do have officials here from Justice Canada if there are any remaining questions: Jean-Charles Bélanger, Deputy Chief Legislative Counsel, Legislation Section; and Claudette Rondeau, Special Advisor and Legal Counsel, Legislation Section. Do we think we'll have any questions for the officials? If so, they could come forward.
Senator Baker: Perhaps we could let them come forward.
I want to point out, Mr. Chairman, that the procedures here today are not — I think Senator McIntyre will agree with me that it was the result of a bill passed many years ago that this procedure be followed whereby a mock bill would be presented to the Senate and we would have hearings on that particular motion. When it goes back for final printing, the normal procedure in the Senate is for it to be read a first time, a second time and then a third time, without it having to be sent back to the standing committee. I think this has happened 10 times since the institution of that particular agreement.
So I just want to put on the record that we don't have to go through this procedure again if we're following custom. There's nothing wrong with the procedure. There was an agreement on both sides that the bill be brought back to us, but by custom, the previous 10 times that this type of legislation has been dealt with, it has not come back to the Senate committee for second consideration.
I wanted to put that on the record. I don't think this procedure we are following today should be seen as setting a precedent for future dealings with legislation such as this.
The reason I bring this up is because I was in the House of Commons when this agreement was made in the mid- 1970s, and it was precisely to shorten the procedure before committees of both houses. We're back before the committee again. There's nothing wrong with it, but it shouldn't be seen as a precedent.
The Chair: I think supporting that, senator, at the outset we were advised that if the committee or committees, either in the house or the Senate, had any concerns that arose out of our hearings, they would be removed from the bill. I think they have followed that approach. So, as you point out, our concerns were addressed before the bill was tabled in the Senate.
If there is nothing further to this point, we can proceed to clause-by-clause consideration.
Is it agreed that the committee proceed to clause-by-clause consideration of Bill C-47, An Act to correct certain anomalies, inconsistencies and errors and to deal with other matters of a non-controversial and uncomplicated nature in the Statutes of Canada and to repeal certain provisions that have expired, lapsed or otherwise ceased to have effect?
Hon. Senators: Agreed.
The Chair: Agreed.
Shall the title stand postponed?
Hon. Senators: Agreed.
The Chair: Agreed.
Shall clause 1, which contains the short title, stand postponed?
Hon. Senators: Agreed.
The Chair: Agreed.
Honourable colleagues, is it agreed, with leave, that the clauses be grouped according to the parts of the bill as described in the table of provisions of Bill C-47?
Senator Fraser: Chair, I wonder if I could ask a question based on profound ignorance, since I wasn't part of the proceedings earlier. I see that we have what I take to be draft observations before us.
The Chair: Yes.
Senator Fraser: They include recommendations that two clauses be removed, withdrawn. Why would we not do that here in committee? It was clause 24 and clause 72.
The Chair: I think the clerk is saying that you're looking at the nineteenth report, and this is the bill that arose out of the nineteenth report.
Senator Fraser: Oh, I didn't look at the date on it. I profoundly apologize. I did say the question was based on profound ignorance. I withdraw.
The Chair: No problem. Thank you.
Senators, I didn't hear a response with respect to leave being granted.
Hon. Senators: Agreed.
The Chair: Agreed.
Shall Part 1, containing clauses 2 to 171, carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall Part 2, containing clause 172, carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall Part 3, containing clauses 173 through 176, carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 1, which contains the short title, carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall the title carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall the bill carry?
Hon. Senators: Agreed.
The Chair: Carried.
Does the committee wish to consider appending observations to the report? It has been brought to the attention of me and Senator Baker that there is an inconsistency in the committee's report. This is the nineteenth report that Senator Fraser was quoting from, and it was tabled in the Senate in November.
In the report, the committee states:
The proposal tabled on May 15, 2014, contains 177 clauses that propose to amend 69 federal statutes.
This statement was based on the fact that the table of provisions lists 69 federal statutes in Part 1.
However, in Part 2 of the proposal, a terminology clause proposes to amend the word "Newfoundland" to "Newfoundland and Labrador" in 11 additional federal statutes. This means that it would actually be more accurate to say that the proposal proposes to amend 80 federal statutes.
Because the steps required to ask the Senate to amend the report are a bit more complicated, I think it's fair to say that Senator Baker and I are proposing the committee consider appending an observation to the report to clarify the record. I'll read out the suggested wording:
The committee notes that in its nineteenth report on the Proposals for Miscellaneous Statute Law Amendment Act 2014, it states that the proposal "contains 177 clauses that propose to amend 69 federal statutes". As a point of clarification, the committee notes that Part 2 (clause 174) includes a proposed change in terminology that would amend an additional 11 federal statutes. The committee confirms that Bill C-47 reflects all of these proposed changes.
Are there any questions on that?
Senator Baker: Mr. Chairman, I'm wondering if we could put on the record the very smart person who noticed that we had counted wrong and whether or not it was a member of this committee or a member of the Department of Justice.
The Chair: Noted. That is an appropriate addition to the minutes.
Is it agreed to append this observation to the committee's report on Bill C-47?
Hon. Senators: Agreed.
The Chair: Carried.
Is it agreed that I report the bill, with observations, to the Senate?
Hon. Senators: Agreed.
The Chair: Carried.
Our second item of business is clause-by-clause consideration of Bill C-479, An Act to amend the Corrections and Conditional Release Act (fairness for victims), which proposes to provide greater discretion to the Parole Board of Canada with respect to the time between parole and statutory release hearings for certain violent offenders. The bill also proposes to allow the Parole Board to cancel hearings in certain circumstances.
We do have officials present from Public Safety Canada, the Parole Board of Canada, and Correctional Service Canada if any technical questions arise during clause-by-clause consideration.
From Public Safety Canada, we have Daryl Churney, Director, Corrections and Criminal Justice Division; and Ian Broom, Senior Policy Analyst, Corrections and Criminal Justice Division. From the Parole Board of Canada, we have Suzanne Brisebois, Director General, Policy, Planning and Operations. From Correctional Service Canada, we have Michel Laprade, Senior Counsel, Legal Services.
Members, do we see any need to call the officials forward at this point? Seeing none, we can proceed to clause-by- clause consideration.
Is it agreed that the committee proceed to clause-by-clause consideration of Bill C-479?
Hon. Senators: Agreed.
The Chair: Carried.
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: Carried.
Shall clause 2 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 3 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 4 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 5 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 6 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 7 carry?
Senator Baker: Mr. Chairman, I propose that we vote against this particular clause in the bill. It's called the transitional provisions. The transitional provisions were introduced into the bill during proceedings of the standing committee hearings in the House of Commons. It was not part of the original bill. It's important to note that this is not a government bill. It is a private member's bill.
When the private member appeared before this committee, upon questioning by Senator Joyal, he said that he was not aware of the decision of the Supreme Court of Canada in a case called Whaling, dealing with parole eligibility.
Just to remind members, in 2011 this committee passed a bill which changed the parole eligibility of prisoners. Unfortunately, when we passed it, there had been unanimous consent in the House of Commons. There was an amendment made in the House of Commons standing committee, agreed to by everyone. It was made by the Bloc, the minister admitted, that made the bill retrospective in application, the provisions. Retroactive or retrospective, it doesn't matter.
Retroactive parole provisions would be if you passed a law that would take effect in the past. Retrospective would be if you passed a law today that would affect an action in the past, somebody who is presently in jail serving a term, but it would take effect from the moment the bill was proclaimed. That's called retrospective, as all members realize.
That amendment was debated here before this committee, and Senator Joyal was the person who said it was unconstitutional. We had letters from the Canadian Bar Association and the Barreau du Québec saying that it was unconstitutional because you cannot make parole eligibility retrospective in application because it affected somebody who had already been sentenced.
I'm not saying that the private member who proposed the amendment at the time was not aware — they couldn't have been — of the Supreme Court of Canada decision two weeks after this amendment was proposed.
This bill that we're trying to pass here today is retrospective, and the transitional provisions say it will affect persons who are already sentenced, already in prison and are facing their second parole hearing.
If this bill is passed as is, it will go to the Supreme Court of Canada eventually. The Supreme Court will ask, "What was the intention of Parliament in passing it to make it retrospective in this particular clause?"
The reason given for its presentation is the following. On page 6 of the transcript of the Standing Committee on Public Safety and National Securitymeeting of Tuesday, March 4, 2014, Ms. Roxanne James said, "Thank you, Mr. Chair." She then proposed the amendment:
This clause clarifies that Bill C-479 will affect the following classes of federal offenders: offenders currently serving . . . a sentence after the first scheduled parole or detention review following the coming into force of this particular bill.
The reason for this amendment is that currently, as the bill was drafted, it would only apply to offenders who had not yet been sentenced at the time the law was changed, and in fact we wouldn't see the fruits of this particular bill until many years into the future.
That was the intent, to make it retrospective and apply to persons who had already been sentenced and who were up for their second parole review.
Senator Joyal made the same arguments he made under the previous provisions, which were struck down by the Supreme Court of Canada. He made the same arguments here. He pointed out that the Supreme Court of Canada decision in Whaling v. Canada, 2014, Carswell B.C., 690, came down on March 20, and the amendment that was made before the House of Commons was made two weeks previous to that. So he's saying that the House of Commons should have picked up on this at report stage and at third reading.
The words used by the Supreme Court of Canada, and I'm just reading from the headnotes which copy the wording of the Supreme Court of Canada unanimous decision:
s. 11(h) may be engaged where no duplication of proceedings has occurred. Retrospective modification of the parole system after an offender was sentenced may have the effect of increasing the offender's punishment, thereby engaging s. 11(h).
— of the Charter. You can't get any clearer than that.
I'm going to vote against this particular clause of the bill. I will vote in favour of the rest of the bill, but certainly against the whole of clause 7.
Senator Batters: In response to my colleague's good argument about that, in referring to Whaling, I want to draw to the committee's attention to and remind everyone that Whaling made it clear that not all retrospective changes to parole eligibility are unconstitutional, only those that apply to everyone and have the practical effect of amounting to additional punishment.
I want to remind everyone that this paragraph was referred to when we had the committee hearings. Paragraph 63 of the Whaling decision contains the following quote from the Supreme Court of Canada:
Generally speaking, a retrospective change to the conditions of a sentence will not be considered punitive if it does not substantially increase the risk of additional incarceration. Indicators of a lower risk of additional incarceration include a process in which individualized decision making focused on the offender's circumstances continues to prevail and procedural rights continue to be guaranteed in the determination of parole eligibility.
I think we've had ample evidence in our hearings that it is discretionary and the board can hold hearings earlier. From my perspective, Bill C-479 simply creates a discretion, not an obligation, for the board to extend the next parole hearing from within the current two years to within five years.
There is a huge difference between that change and when the Supreme Court in Whaling struck down the bill that eliminated accelerated parole review, including for serving offenders. The former bill reduced parole eligibility for already sentenced offenders, but this bill leaves the parole ineligibility intact and merely creates discretion for the board for future application dates if they're denied. I think that's a material difference that will be relevant in any future Charter consideration by the courts.
The Chair: Is there any further discussion on this clause?
Senator Baker: Senator Batters pointed out that we did hear evidence that a person who is incarcerated can apply for parole and that the rules say that within one year of the application it must be dealt with within a six-month period after the year. It amounts to up to 18 months that that application would have to be dealt with.
But it was clearly pointed out by the witnesses from the Parole Board that this did not require a hearing. That's the difference between the rules concerning an application for parole and what we are passing here today.
The witness for the Parole Board was very clear when she said that the effect of this particular bill would be to lengthen parole eligibility. That's the whole purpose of the bill, to lengthen the parole eligibility. That's what the sponsor of the bill said. That is the purpose of the bill.
To then make that retrospective is where we have a problem. With respect to the evidence we heard, we brought the lawyer for Whaling before this committee, all the way from British Columbia, and he testified. He said this is clearly unconstitutional. He's an expert.
We had Mary Campbell here, who is an expert on the law regarding offenders and their incarceration. She was an expert we used to call an ADM of the department and appeared before this committee when the provisions that were struck down in Whaling were being dealt with in this committee. She was sitting next to the minister right here in this committee room. What did she say? She said that this bill on its face could be unconstitutional because of that one provision we are dealing with in clause 7.
So I still think from the evidence we have heard and from Senator Joyal's opinion, which has proven correct in previous legislation, I don't think we should pass clause 7.
Senator Batters: Just to respond to a few points there, also in her testimony, Suzanne Brisebois stressed on several occasions that the board has full discretion to hold hearings sooner than the legislated maximums for both parole hearings and detention hearings, and nothing in this bill changes that.
In her opening statement, she outlined those new time periods and said the following:
It is important to note that these changes apply only to legislated parole review dates. Eligible offenders would still be able to apply for parole one year after denial, cancellation or termination.
She went on to say:
It should be noted that while the legislation identifies the minimum time frames for scheduling these reviews, the board may conduct a parole or detention review at an earlier time based on the information it receives from CSC. Under Bill C-479, this will not change.
She did reiterate that under questioning from several senators.
Senator Baker: In answer to a question during our standing committee hearing on Thursday, February 5, 2015, I asked her a question and she responded. My question was this:
Senator Baker: Basically the bill does what the private member sponsoring the bill set out to do, and that is to give a longer period of time in which the review or a hearing would take place.
Ms. Brisebois: Yes.
Senator Batters: Do we want to talk a little bit further about what else she said to you? There were a couple of other quotes that Ms. Brisebois responded to:
Now, you mentioned that it does not affect the rights of a prisoner to apply for parole after one year of being rejected in the previous application; is that correct?
Ms. Brisebois: That's correct, yes.
Senator Baker: That's in the act.
In your regulations, it says that the board must consider the application within six months following the application being made; is that correct?
Ms. Brisebois: That's correct.
Senator Baker: That's 18 months. But when the prisoner himself or herself applies under those circumstances on their own, the Parole Board must consider the application and not necessarily have a hearing concerning the matter; is that correct?
Ms. Brisebois: We are required to conduct a review for applications. Various case specifics could factor in whether or not a hearing would be held, but in certain circumstances it wouldn't be required; you're correct.
Clearly, she outlined a number of discretionary elements there.
The Chair: Point and counter-point on the record. We will move back to the question at hand.
Shall clause 7 carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: No.
The Chair: Carried, on division.
Shall class 8 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 1, which contains the short title, carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall the title carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall the bill carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: Carried, on division.
Does the committee wish to consider appending observations to the report? No?
Is it agreed that I report this bill to the Senate?
Some Hon. Senators: Agreed.
The Chair: Agreed. Thank you very much.
We did have another potential item for discussion this evening, but for a variety of reasons that has been postponed. We have now wrapped up our business for the evening.
Senator Baker?
Senator Baker: Mr. Chairman, I just want to bring to the attention of the committee and to those Canadians viewing the meeting that a bill passed the House of Commons on Monday, Bill S-221, which this committee dealt with. This committee had the unions in representing bus drivers, taxi drivers, transit workers and so on. The bill successfully passed the House of Commons, and we have to congratulate the sponsor of the bill, none other than our chairman, Senator Bob Runciman.
The Chair: Thank you very much for that, senator.
Now that you've raised it, I have to also put a "thank you" on the record, and that is to the deputy chair of this committee, who has been very helpful on so many occasions and makes a significant contribution not only to the way this committee works but to the comradery around this table. I think it makes this committee, if not one of the more enjoyable ones — I don't know which one would be more enjoyable to work on. Senator Baker's presence is a great contributor to that.
Senator McInnis: One shouldn't do this, but I was listening to a talk show the other day, and the commentator introducing this topic said, "Why would we need this? What bus driver or taxi driver gets assaulted?" Then the calls started coming in from taxi drivers and bus drivers. This guy was obviously provoking the audience, but I'll tell you, it got tremendous accolades. We knew at the time the number of assaults that were taking place because you told us and the witnesses told us, but one particular taxi drive that represents a whole crowd of them said, "You wouldn't believe the assaults we endure, and this will now help us." So great work.
The Chair: Thank you.
As a reminder, we meet again tomorrow to begin deliberations on Bill C-452.
(The committee adjourned.)