Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue No. 23 - Evidence - March 2, 2017
OTTAWA, Thursday, March 2, 2017
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-224, An Act to amend the Controlled Drugs and Substances Act (assistance — drug overdose); and Bill S-231, An Act to amend the Canada Evidence Act and the Criminal Code (protection of journalistic sources), met this day at 10:35 a.m. to give clause-by-clause consideration to the bills.
Senator George Baker (Deputy Chair) in the chair.
[English]
The Deputy Chair: I would like to welcome honourable senators and members of the public with us in the room, and also viewers from across the country who are watching on television.
We are meeting to resume consideration of Bill C-224 and Bill S-231. We have heard from several witnesses and are now at the stage where we will be going through the bills clause-by-clause.
There are certain amendments or comments that I am instructed to make prior to clause-by-clause consideration. Those would include that if at any point a senator is not clear where we are in the process, then that senator can ask for clarification.
When more than one amendment is going to be moved in one particular clause, the amendment should be proposed in the order of the lines of a clause. Therefore, before we take up an amendment in a clause, we will be verifying whether any senators had intended to move an amendment earlier in that clause.
If a senator is opposed to an entire clause, the proper procedure is not to move a motion to delete the entire clause, but rather to vote against the clause standing as part of the bill.
If members have any questions about the process or the priority of anything going on, they can raise a point of order. The chair can make a ruling and the committee ultimately, as the master of its own business, can make a decision and a ruling can be appealed to the full committee by asking whether the ruling shall be sustained.
We'll try to ensure that all senators wishing to speak have the opportunity.
If there is any uncertainty as to the results of a voice vote or show of hands, then a roll call vote will take place. Senators are aware that any tied vote negatives the motion in question.
Before we begin, are there any questions relating to the matters that I just raised?
Senator Joyal: I see Paul Saint-Denis from the Department of Justice in the room. Should we not ask him to come to the table? In the course of our consideration of the bill, we might want to ask him questions. Knowing the extent of the knowledge of Mr. Saint-Denis, I think it would be helpful to have him at the table.
The Deputy Chair: I totally agree.
Do the other committee members also agree?
Hon. Senators: Agreed.
The Deputy Chair: I would call Mr. Paul Saint-Denis, Senior Counsel to the Criminal Law Policy Section of the Government of Canada, to the table.
We are going to do Bill C-224 first, so if we could also call to the table Kristen Mattison, Director, Controlled Substances Directorate, Healthy Environments and Consumer Branch, Health Canada. We have also Miriam Brouillet, legal counsel for Health Canada Legal Services.
Is it agreed that the committee proceed to clause-by-clause consideration of Bill C-224, An Act to amend the Controlled Drugs and Substances Act (assistance — drug overdose)?
Hon. Senators: Agreed.
The Deputy Chair: Shall the title stand postponed?
Hon. Senators: Agreed.
The Deputy Chair: Shall the short title in clause 1 stand postponed?
Hon. Senators: Agreed.
The Deputy Chair: Shall clause 2 carry?
Senator Joyal: Mr. Saint-Denis, were you able to read the minutes of this committee when we heard witnesses in relation to proposed subsection 4.1(2) of the bill that amends the Controlled Drugs and Substances Act? There were questions raised, some of them by Senator Sinclair, which I think were quite appropriate in relation to phrase "remained at the scene.'' Perhaps Senator Sinclair should raise it himself because he was the one to identify that question. The understanding is that "remained at the scene'' means the scene where the drug was consumed or the scene where the victim of the overdose is found, but it would not cover the situation whereby the person remained with the victim of the overdose, for instance, in the car taking that person to hospital or to a clinic or to get some support.
Were you able to consider or reflect upon that, if I am making the point as clear as Senator Sinclair made it when he raised this issue?
Paul Saint-Denis, Senior Counsel, Criminal Law Policy Section, Department of Justice: Thank you, senator.
The phrase "remained at the scene'' is somewhat open to interpretation. The interpretation that I would tend towards most would be remain at the scene where the individual who is suffering from the overdose is. Remaining at the scene where the drug was taken could be quite a distance from where the person is. So I suspect that is not the intention of the clause. I think more is in line with where the person who is in a medical emergency is and where the person who sought assistance is as well.
Senator Joyal: Underlining the question is that the person who is at the scene is where the victim is found. As you say, the consumption might have taken place somewhere else. But the person who accompanied the victim in a car, who took the victim to the clinic, is the car part of the scene?
The reason I ask the question — and I know the chair will understand — is that if that is adopted you will have to give an explanation to the Crown prosecutor about the intent and the scope. It is important for us to understand how you, yourself, interpret it to make sure that the bill, once adopted, is not left in the dark for those who will have to read it and interpret it on a daily basis as the Crown prosecutor or as members of police forces who will be the first ones involved in the implementation of this section.
Mr. Saint-Denis: I think the most obvious interpretation is the one that we've just discussed, where the victim of the overdose is and where the person who is called for assistance is.
The situation of the car or of taking someone to the hospital raises different issues because in those circumstances it's not clear that they've actually called 911 and asked for assistance.
If the person is stopped, for instance, on the way to the hospital by a peace officer, would this provision apply? Courts might be prepared to extend that interpretation to cover that situation, but it's not clear. And if the person were to take the victim suffering from the overdose to the hospital, here again there's no indication that the peace officer has been called or emergency has been called. The issue might not arise if the person is taken to the hospital. Police might never be called on a scene at the emergency, for instance, so the situation would not arise as to whether or not he is protected from a charge.
The Deputy Chair: With regard to something that's not going to be dealt with in the amendments to come, could Mr. Saint-Denis verify to us that this proposed section applies only to law enforcement as it pertains to any charge that could be laid under subsection 4(1) of the Controlled Drugs and Substances Act? Could you verify that 4(1) only covers drugs that are in Schedule I, II and III, and it does not cover drugs in any of the other sections?
We had case law at our last meeting to disclose that it's normal where a person is found with drugs from Schedule I, II and III to also be charged with possession of substances in Schedule IV, and that 4(1) does not cover a potential charge of trafficking, defined as giving a drug to somebody. If you give a controlled substance to somebody, just hand it to them, that's trafficking under the law. Could you verify that anyone in the presence of this particular person who may have given that person the drug would not be subject to protection under this act?
In order words, two questions: number one, that it only covers drugs in Schedules I, II and III; and, second, that it does not cover the person who has given that person the drugs. Could you verify that?
Mr. Saint-Denis: As you were speaking, I did verify quickly. In fact, subsection 4(1) of the CDSA indicates that it's not just substances caught in Schedules I, II and III but also Schedule IV. There's that additional schedule that you'd be covered for.
You're correct in your interpretation that someone who has given the drug to the person who is suffering from the overdose would not be protected — if he had called for emergency services — from a potential charge of trafficking.
As to whether or not there is sufficient evidence there to demonstrate trafficking, that's another question. The protection that's provided by this bill does not extend to anything beyond possession of those scheduled substances.
The Deputy Chair: As a point of clarification, the definition of "traffic'' covers substances included in Schedules I to IV, I agree with you, but subsection 4(1) of the CDSA only covers drugs from Schedules I to III, not Schedules I to IV.
Mr. Saint-Denis: You're absolutely correct. I erred. I was looking at the wrong section.
The Deputy Chair: You were looking at the definition for trafficking because I asked you about trafficking and that goes to section 4.
So this bill is very limited in its application as it would apply to those persons who may be present at the scene of the incident that we're talking about here.
Mr. Saint-Denis: That's correct.
The Deputy Chair: That is correct. Now we go to further questions.
Senator Sinclair: I have another amendment with regard to proposed subsection 4.1(2). I don't want to get into that yet. If you raised a question here with this individual that I think might need some clarification, maybe I'll address it.
Just so you know, incidentally, the point that Senator Joyal was asking about that I raised at the last meeting was not so much about the question of the scene — although I did reference that — it was having remained at the scene. It was in the entire phrase. My point and my question was that that implied a single location where the individual had the overdose as opposed to the ultimate location where he was taken to a hospital, and whether this protection afforded to the person who was assisting him would extend to the second location as opposed to the first location and whether the scene would be all-inclusive or not. That was the context of my point at a previous meeting.
I think that raised or emphasized the importance of the phrase "having remained,'' because if you have not remained at the original scene and have gone to another place, does that mean that you've left the scene and created another scene, or has that extended the scene to the second location?
Senator Joyal: Before the witness answers that question, I want to remind the witness that this is an exception. The court will normally interpret an exception narrowly. It's not a general provision. It doesn't say that no one is guilty. It says that no one is to be charged. There is a nuance between the two.
It seems to me that we have to be very concerned about the clarity of what we are expressing here, because when the judge is asked to interpret it, he will have to interpret it on the very nature of the section, and the section is an exception. So it has to be narrowly interpreted.
The point raised by Senator Sinclair has even more importance because it will give to the judge the latitude that he or will have to appreciate due to the special circumstances of the case.
Senator Sinclair: In addition to that, my questioning at the last hearing also extended to the matter of whether we might cover our concern by adding the words "having remained at the scene or with the victim.''
The Deputy Chair: Would any of the witnesses wish to comment on that?
Miriam Brouillet, Legal Counsel, Health Canada: I think it's an interesting question. The court will be asking several questions when addressing that issue. One of them will be: What was the intent of the legislator when this provision was brought forth? In this context, if you look at the evidence presented in Parliament, the intent is to protect the person, that is, the Good Samaritan, supporting the individual that is subject to an overdose. That will, I presume, influence the court in their assessment of this provision.
"Having remained at the scene'' can be interpreted in a narrow way, in a very literal way, as meaning the scene at which the overdose occurred, the scene at which the person called law enforcement or medical support. It can also be interpreted — that could be proposed to a court — as being the scene of the individual subject to that medical condition, to that overdose. I think both interpretations can be presented to the court.
On the question as to whether further clarification can be brought forward and be useful in order to avoid any debate as to the interpretation of that provision, that's something for the committee to consider.
Senator Dean: One of the triggering mechanisms and, I think, one of the intentions of this change assumes, obviously, a situation where somebody has sought emergency or medical assistance, in the course of which they will provide an address or a location. I think we all assume that. It would seem to me that if somebody leaves that location and isn't there when the medical support or emergency services show up, this may not have any effect in any event.
Isn't it the case that if I'm with somebody in an overdose situation, I call for emergency medical help that may involve law enforcement and wait for them to show up. They find or don't find substances that might otherwise find me committing a criminal offence, and I'm protected, to some extent, as a result of this proposed subsection.
If I go somewhere else, does it nullify the intention and impact of the provision that we've been trying to create?
Mr. Saint-Denis: When you say "go somewhere else,'' in the area, in the vicinity?
Senator Dean: I'm just assuming the way this works is that I'm either in a house, an alleyway or at some location where I can communicate with a 911 operator. It's the location that they're going to bring support to. When they arrive, if police are involved and they find controlled drugs, to some extent, as a Good Samaritan, I'm protected.
If I've left that scene and gone somewhere else and medical personnel and a police officer arrive and there is nobody there, then presumably they try to find me. I'm saying everything in this clause presumes that we make a call for medical help and are there when it arrives. We're in the same location, or maybe we've moved a few feet down an alleyway or between floors in a house. But, if we've moved a number of blocks, taken a car and driven somewhere, we're not in the originating location. Isn't it all tied to that location?
I'm not a lawyer — that has become obvious by now — but from a clear read, I would assume that the location is the location identified in the call for help.
Mr. Saint-Denis: I think that's correct. There is a link between where the individual is, where the call for help is made and where the person who made the call is.
If the person leaves the scene and, as you suggest, is perhaps several blocks away, it would be difficult for the police to know that that individual is tied to the call. So there is that difficulty.
The purpose of this thing is to encourage people to stay with the victim so that they can provide assistance until the professionals arrive.
Kirsten Mattison, Director, Controlled Substances Directorate, Health Canada: I'm also not a lawyer, but if I return to reading the words here, it says, ". . . seeks emergency medical or law enforcement assistance. . . .'' I think, from a health perspective, if we speak to the intent of protecting the individual suffering the overdose, seeking assistance is not written as dialing a phone. That could be going to seek a community police officer and saying, "Please come with me and help this individual.'' That could be transporting the individual to a hospital.
I think it's important that we think in a health context with the intent that seeking emergency assistance may not be dialing a phone from a location. That may also capture actively moving with the overdosing individual, and the language here, from my non-legal perspective, the Department of Health, does seem to encompass that.
The Deputy Chair: I forgot to mention that this is Kristen Mattison who is speaking. She is Director of the Controlled Drugs and Substances Directorate, Healthy Environments and Consumer Safety Branch.
Before we go on, Miriam Brouillet made a comment that the interpretation of this legislation would go back to the intent of the actual act itself. I think Senator White should probably, in a few moments, move an amendment with regard to the scene of the incident, and Senator Sinclair regarding the getting of emergency assistance. But we want to hear from everybody first, so we'll go on this subject back Senator Dean. Are you satisfied?
Senator Dean: Yes.
[Translation]
Senator Dupuis: Ms. Mattison, you answered one of my main questions, regarding clause 4.1(2); it should not, it seems to me, be interpreted in a way that is directly related to dialing 911. We are talking about all forms of assistance, all types of request, whatever the means of communication.
I would have a question regarding the first paragraph, and the definition of an overdose. Mr. Saint-Denis, if I understood the explanation provided by Dr. Isra Levy, the chief public health officer at Public Health Ottawa regarding the definition of overdose, there is a first part that is clear, not necessarily to lawyers, but to them in any case.
The question I have concerns the last part of that definition, which reads as follows, and I quote:
. . . and that a reasonable person would believe requires emergency medical or law enforcement assistance.
I am trying to understand the reasoning that led to including a point in this paragraph that I find difficult to justify from the point of view of the person who called.
For instance, an overdose occurs, a person calls, and without being a medical specialist, thinks that the person's life is in danger, and asks for help. Are we not running the risk of discouraging people by expressly mentioning the fact that there have to be reasonable grounds to believe that the person is in danger? Are people in a position to make that distinction? Personally I don't feel capable of making it. I have legal training — and that has nothing to do with medicine — and I'm trying to understand why I would need to have reasonable grounds to believe that the emergency intervention of health professionals is urgently needed. Are we not imposing an unnecessary burden on the person we want to encourage to act as a good samaritan?
Mr. Saint-Denis: It seems to me that we wanted to ground the notion of urgency in something that would motivate the individual to want to call and get help. We used a standard that is normally used in criminal law, that of reasonable grounds. I think the underlying idea was to establish the fact that people should not ask for help for just any reason; there have to be good reasons, reasonable grounds, to call for help for someone who is in a state of crisis.
Senator Dupuis: The reason I ask the question is that we are not talking here about a police officer who has reasonable grounds to arrest someone because he thinks an offence has been committed. The issue also does not come up for community street workers, whose job it is to identify people who have problems, and who are quite capable of determining when there are reasonable grounds. Since we are talking here about drug overdoses, we are also talking about groups of people taking part in a collective activity, or at least about more than one person. We are talking about people whose faculties might conceivably be impaired as well, in a certain number of cases. That is why I was wondering what the rationale was for this, specifically.
[English]
The Deputy Chair: Is there any comment on that particular statement?
Mr. Saint-Denis: I think it's a valid point to be made that, under the circumstances, both the victim and the person calling for assistance may have taken a certain amount of drugs, so the ability to form reasonable grounds may be somewhat impaired. Again, the intention of this legislation is to provide assistance to someone in a state of crisis. If someone lacked the exact criteria to meet reasonable grounds to believe, I'm convinced that a judge would not hold that against the individual.
We have to bear in mind the objective of this legislation, which is to ensure that lives are saved and to encourage people to stay with individuals who are suffering from an overdose. If we start interpreting these provisions in a fashion that would discourage people from staying, then we would be heading in the opposite direction of where this wants to go.
The Deputy Chair: We're going to go in a moment to Senator White and Senator Sinclair, who I believe have amendments to clause 2, to have them explain their amendments and for us to deal with them in order.
First, however, we'll go to two further senators who may want to ask questions that may not pertain to those subjects.
Senator Batters: Going back a few question, when Senator Baker, the chair today, was asking about what the schedules in this bill apply to — and for those who may not have seen the earlier proceedings of this bill, what came out in previous witness questions — I wanted to clarify what Senator Baker was getting at.
Is it correct that this particular bill only applies to possession charges for Schedules I, II and III?
Mr. Saint-Denis: That's correct.
Senator Batters: And for trafficking it applies to drugs that are in Schedules I, II, III and IV. Senator Batters: Mr. Saint-Denis, that's what you're saying?
Mr. Saint-Denis: That is correct.
Senator Batters: But there are eight schedules of controlled drugs and substances. Those drugs that are in the schedules for possession — Schedules V, VI, VII and VIII — are not covered by this bill; and for trafficking, those drugs that are in V, VI, VII and VIII are not covered by this bill;, correct?
The Deputy Chair: Could you clarify, Mr. Saint-Denis, that this bill only covers possession; it does not cover trafficking whatsoever? If somebody were to give somebody any drugs in this particular instance, they are not protected this legislation at all? I think there may be a general misunderstanding on this. Could you clarify that as Senator Batters wishes you to do?
Mr. Saint-Denis: That is quite accurate. The bill is to provide protection only for the offence of possession of drugs listed in Schedules I, II and III. Indirectly, it covers off drugs in Schedules VII and VIII because they're the same drugs found in Schedule II, cannabis, but the other schedules are not covered.
Senator Batters: I'm confused by Schedule IV.
Mr. Saint-Denis: I should point out there is no offence of possessing those other drugs.
Senator Batters: Of which ones?
Mr. Saint-Denis: The drugs in Schedules IV, V and VI. There is no possession offence for those drugs.
The Deputy Chair: But there's trafficking offences in them.
Mr. Saint-Denis: Yes.
Senator Batters: What were you trying to explain to Senator Baker earlier about the application of this bill to Schedule IV?
Mr. Saint-Denis: I made a mistake. I erroneously said that the possession offence applied to Schedules I, II, III and IV, but it doesn't; it applies only to I, II and III. The trafficking offence applies to the fourth schedule as well.
The Deputy Chair: It doesn't apply in this bill.
Mr. Saint-Denis: But this bill does not apply to the offence of trafficking; it applies only to the offence of possession.
Senator Batters: For a public education component, as was being discussed when we heard from other witnesses, do you think it would be helpful to make it very clear to people that the fact that this bill only applies to those first three schedules is not going to impede someone in this particular predicament from seeking assistance and not being subject to criminal law implications?
Ms. Mattison: Health Canada has committed to putting together public education materials if this bill does become law. We intend to target that to multiple populations — so to an entrenched drug-using population, to a recreational youth-targeted population, as well as to the general population. We have absolutely put a lot of time and thought into how to clearly communicate what the law is, what it isn't, and what it can protect people from. It's in very plain language. Because there is no possession offence for some of those other schedules, if this law is in place and somebody seeks emergency assistance during an overdose, they will not be penalized for simply possessing any controlled drug.
Senator Batters: I can tell you that when the witnesses were here that that was certainly not clear at all. I think a number of people around this table assumed there was a major gap in this bill because of that. So are those public education materials ready to go? We've seen other instances where Health Canada has not acted quickly, and as a result we've had dire consequences.
Ms. Mattison: We certainly wouldn't want to go ahead and have anything out there until the bill becomes law, if it becomes law.
Yes, we've put a lot of work into it. At the federal level, there's a federal-provincial-territorial committee that works through a structure called the Public Health Network, and there is a communications subgroup of that committee. The federal government has been working with our provincial partners as well to draft materials to plan out who will pay for it, who will produce it, how we're going to distribute it and make sure that gets across the country.
The Deputy Chair: And you may have to take into consideration amendments that will be made, of course, by the Senate and this committee.
Ms. Mattison: Exactly, of course. The content is not solidified, but the advance planning work is all done and all the systems are in place. As soon as we know the content and the date, we'll be ready.
The Deputy Chair: I have reasonable grounds to suspect that that may be the case; we may amend this bill.
Mr. Saint-Denis: Just a step back on the question of "des motifs raisonnables de croire.'' If you look at the English version of the same text, we don't talk about "reasonable grounds to believe,'' which is what we would normally find. We talk about "a reasonable person,'' which goes more to the sense of my explanation, which is that we're not really looking at a criminal law standard here so much as ensuring that there are some grounds that would lead someone to want to call for assistance or seek assistance.
The Deputy Chair: A reasonable person.
Senator Sinclair: But the French version says the opposite.
Mr. Saint-Denis: No, the French version doesn't say the opposite. The French version is a version of the reasonable man or the reasonable person. In any interpretation, the court would look at both versions and would come to a conclusion that is not limited to reasonable grounds to believe.
[Translation]
Senator Dupuis: I would have another question in connection with that reply. I would like, if I may, to talk about the consistency of the legislation in both official languages of Canada. This is a real issue, and as you can see we have already spent a good part of our discussion on a single clause, on half of a definition, and on another point in the following clause. And so I think that the responsibility of legislators, and that is what we are, is to see to it that the situation we want to resolve can be interpreted as easily as possible by members of the public who are likely to become or who want to be good samaritans. Moreover, we want to make sure that people in the legal field will not have to wage battles on the real meaning of the words. Does the "reasonable grounds'' criterion from criminal law apply here, although you tell me that something different was chosen for the English version? I think this is a perfect example of what we want to avoid.
[English]
The Deputy Chair: Do you wish to comment, Mr. Saint-Denis, on the difference the phrase "a reasonable person,'' who is supposed to be somebody seized with all the facts, who knows all the facts?
[Translation]
Ms. Brouillet: I would like to draw your attention to some pieces of legislation that were passed by American states. Some states studied this issue, and just as we are doing now, attempted to better define what the necessary intention should be of the person who calls emergency services for an overdose. With your permission I will read the wording and you will see that other states got close to the notion of "reasonable person'' in the English version, in other jurisdictions. For instance, in California, the text reads as follows:
[English]
. . . if a reasonable person of ordinary knowledge would believe the condition to be a drug-related overdose that may result in death, disability, or serious injury.
[Translation]
So other legislators have tried to word things so that the person's intention would be measured in light of what is not necessarily a legal standard, but the actions of a reasonable person in those circumstances. There are other examples that use very similar wording and that could help the committee in its analysis.
[English]
The Deputy Chair: I think Senator Dupuis' point was that, in Canada, a reasonable person is somebody who is knowledgeable of all the facts, not somebody who is not knowledgeable of all the facts.
[Translation]
Senator Dupuis: The English version is not the problem; it is that there has to be consistency in the choice of terms to justify the legal test the person will have to apply. The expression "reasonable person'' exists in both French and English. That is all I wanted to point out. We are introducing a substantively different legal test in the French version that differs from the English version, and the latter is less cumbersome, I must say; I agree with the criterion in the English version.
[English]
Senator Pate: I'm curious. You restated a few minutes ago that the purpose is to save lives and to get people to call, and obviously there is a public health interest in that.
Given who we are talking about, many of the people who might be involved with someone having an overdose may have already had brushes with the law and may have reason not to trust. We know from the New York survey that was done that most people don't trust the legislation and don't believe that, in fact, it will protect them.
I'm curious why the wording was such as it is, because if someone is on probation or parole and calls and stays there, they're being penalized for sure. Whether or not they're charged criminally, they're penalized.
Was there any discussion about using language like "there will be no penalizing'' or there will be recognition that they've done something to try to assist someone?
With the wording, as it is, I would say most people in that situation who might already have a criminal report or be on probation or parole, of course they are not captured. If our interest is in getting people to call, getting medical attention and saving lives, why would we word it in such a way that it would automatically raise suspicion?
Mr. Saint-Denis: I think you would have to ask the sponsor of the bill for the specific reasons why. But my sense is that the focus was to protect someone who is in a drug milieu, who seeks assistance for either a friend or a companion, to protect that person from a subsequent drug charge.
If you open it up to things like protecting the individual from potential breaches of a probation order, or if you offer protection from an arrest warrant, you broaden the ambit of the protection considerably. Then you could potentially come into conflict with the notion of wanting to save a life, if that's the case, and also public safety.
Let's say there is an arrest warrant out for the individual who happens to be there. That person may be wanted for some very serious offences. For the person who is in breach of a probation order, the conviction that resulted in the probation order may be a very serious offence as well.
You open up the ambit of the reach of the protection considerably if you want to go down that particular path.
Senator Pate: I'm thinking of a different hypothetical and the person may not necessarily be involved, but if they're not supposed to be in an area but that's who's called by other parties, then we presumably want to encourage people to do it.
It is a private member's bill, but there is responsibility on the part of the department, I would think, to give this kind of advice in terms of public health interest and encouraging people to call and save lives and taking into account those potential issues.
If someone is in a situation where they might potentially be at risk of being penalized, not necessarily criminalized but penalized — certainly if they're at risk of being criminalized there is some attempt to deal with that, although it doesn't get at trafficking. But that wasn't a part of the discussion in terms of who we're talking about, who is likely to be in the area or who is likely to be privy to some of this information?
Mr. Saint-Denis: You mentioned who may be in the area. The person you have in mind may not even be the person who has phoned or tried to get assistance. He may just be a hanger on. He may be part of a group and I'm not sure why such a person would warrant protection.
This is not protection for people at large. This is for protection for people who have attempted to and have gotten assistance for someone who is in a crisis situation. This is not a blank cheque for everyone who happens to be around that person or who is in that party.
The Deputy Chair: Senator Joyal wishes to intervene, but at this point we should go to Senator White and Senator Sinclair, because this bill may be enlarged substantially with some specificity as far as amendments are concerned.
Senator Joyal, a comment.
Senator Joyal: I have a comment on the answer that Mr. Saint-Denis has given.
Mr. Saint-Denis, you totally express the expected intention of the bill, but as you say, we expect that someone who is on the scene where a person is suffering an overdose might have also consumed some drugs but will call the police because that person sees someone is in danger of losing their life.
But proposed subsection 4.1(2) says the person who seeks emergency has to be suffering from an overdose himself or herself. It reads:
No one who seeks emergency medical or law enforcement assistance because they, or another person, are suffering an overdose . . . .
[Translation]
In French, the text reads as follows:
Quiconque demande, de toute urgence, l'intervention de professionnels de la santé ou d'agents d'application de la loi parce que lui même ou une autre personne est victime d'une surdose . . .
[English]
So you have to suffer from an overdose yourself to call the police to help that person who is already the object of an overdose. It doesn't mean that the person who has just consumed drugs and is a little dizzy realized that the other person is dying because the person is suffering from an overdose. The person who calls has to suffer from an overdose. That's what the text says.
The Deputy Chair: That's one interpretation of the text.
Mr. Saint-Denis, I don't know if you want to comment, or shall we move on to Senator White and Senator Sinclair? You may want to think about that.
Senator White, could you go ahead with your first observation.
Senator White: The first amendment will be brought forward by my friend, but the questions we're putting to the witnesses are a little early because some of the amendments, if adopted, will change their answers. I'm a little concerned about leading them astray right now.
The Deputy Chair: That's why I let it go that way because it established the grounds for the actual amendments.
Senator White: I appreciate that.
The second piece is around the word "scene.'' In this bill, "scene'' refers to a crime scene. A crime scene is not only the place where a crime occurred but can be any person who actually leaves the location who has evidence to present. If the individual was thrown into a car and taken to the hospital, then any evidence, which would include that person, could be part of that crime scene. But that's a different thing.
I think we've led them down a path and now we're going to try to get them reverse back up the path. I think the discussion may have been unfair because they didn't draft this bill. The discussion around our intent was not to get people to stay. Our intent was to save lives, first and foremost. I don't think our intent was to only exempt people under section 4. I think our intent was to exempt people under other charges that Senator Pate talked about. It's a little unfair because they didn't draft the bill.
The Deputy Chair: Let's go to Senator Sinclair who you suggested has an amendment that would come before your amendment. We have reasonable grounds to suspect that is the case.
Senator Sinclair, please go ahead.
Senator Sinclair: I feel as though I've been led down a garden path.
With regard to proposed section 4.1(2), just so both the witnesses and members of the committee know, it talks about evidence in support of an offence being "obtained or discovered as a result of that person . . . .''
I think the evidence that this proposed subsection is talking about are statements or admissions because it's information that police or medical people will ask of the witness. They'll say to either the witness or the victim of the overdose, "What did you take? When did you take it? How much did you take?'' They might ask, "Where did you get it from? Where is it now?'' That's the kind of information that the evidence in this proposed section refers to, I believe.
I can't think of any instance where it wouldn't be admissions that would be used ultimately, without this subsection, to lead to a charge or a conviction.
Keeping that in mind and keeping in mind the very point that Mr. Saint-Denis made about the purpose of this bill is to ensure that people take action to help those who are in an overdose situation, I'd like to propose an amendment to proposed subsection 4.1(2). The amendments have been distributed, so I want to draw your attention to the particular wording. Senator White and Senator Baker and I collaborated a bit on the wording, and we got the advice from the law clerk's office as to how to put this together.
The first thing that we looked at was the question of what this particular provision was intended to do. Our view was that it's not only intended to prevent police from charging, but it's also intended to prevent people from being convicted of an offence of simple possession where the evidence obtained by the police is the kind of evidence that I've referred to. So I've suggested an amendment that you now have in front of you. It reads:
That Bill C-224 be amended in clause 2, on page 1, by replacing line 16 with the following:
"fering from an overdose is to be charged or convicted under subsec-''.
And then it continues on line 17. The intention is to prevent people from being charged and convicted of simple possession where the information is obtained as a result of them calling for assistance.
The logic behind it was that there might be the possibility of overcharging, where they would charge a person with possession for the purpose of trafficking or some other offence, and then take a plea to a simple possession charge in substitution, when all of that evidence is caught by this particular circumstance. That's the purpose of this amendment. It is to allow a Good Samaritan to also be able to avoid a conviction for simple possession even if he is charged with other offences which are stayed in order to get this simple possession offence on his record.
That's the first amendment.
The Deputy Chair: Do we have any comments on that first amendment? If not, we'll vote on it and then go to the second amendment on the same clause further on.
Senator Sinclair: To summarize, in simple terms, we're just adding the word "conviction'' after "charged.''
Senator Joyal: What you propose would have the effect of preventing charges related to section 4(1) that could be connected with other charges, including an offence.
The way the subsection was drafted, it doesn't say that the person did not commit an offence; it says no one is to be charged. I think it is important to realize the nuance between "charge'' and, as you said, or "convicted.'' If you say "convicted,'' it means there is no offence.
Senator Sinclair: It means there is no offence under section 4(1), but they can be charged with a trafficking offence.
Senator Joyal: Absolutely. But they cannot be charged under section 4(1), which is simple possession.
Senator Sinclair: But they cannot be convicted of a simple possession offence.
Senator Joyal: Only that one. The nuance is quite important.
Senator White: In practice, you arrest someone at a scene and you charge them with possession for the purpose of trafficking, which would be lawful under this legislation. Without adding that, they could still be convicted for simple possession as it's an included offence.
We want to remove the secondary opportunity for the police to overcharge — not that they would ever do that — and then end up gaining a conviction for something that was never the intent of this legislation.
Senator Joyal: Exactly.
The Deputy Chair: If we have no further comment, then we can vote on it.
Senator Joyal: Maybe ask for Mr. Saint-Denis's reaction.
The Deputy Chair: I don't know if he would have any reaction to that.
Mr. Saint-Denis?
Mr. Saint-Denis: It looks like a very interesting suggestion. It would deal with instances where someone may have been charged with possession for the purpose and then an attempt to plead it downwards. Then the conviction for that possession would not occur. That looks like something that would be useful in this context.
The Deputy Chair: Those in favour of the amendment? Opposed? The amendment is carried.
Now we go to Senator White who has an amendment to the same line, I believe, further on.
Senator White: It's actually line 19. It's now states:
. . . sought assistance and having remained at the scene.
I would remove the word "and'' and replace it with "or'' so that it would cover people who did not stay at the scene. So people can leave, in other words, and still not be prosecuted.
My intent there is to broaden it. That's why I said it was a bit unfair. Although we heard from the owner of this piece of legislation that his intent was to have people stay, his actual evidence in the house is not what he said.
I would argue that's not intent. I think the intent is to save lives, and this would remove that fence around the individual who, in my experience, is not staying at the scene.
[Translation]
Senator Dupuis: I have a comment on the amendment. In Cape Breton, does the expression "sought assistance or having remained at the scene'' mean that we require that a person ask for assistance and then remain at the scene afterwards? Now, if we are asking that person to seek assistance and remain at the scene, that would mean that the clause no longer applies to the person. The idea at the outset was that he or she had to ask for assistance. We don't necessarily want them to stay there. That is the idea here, but we won't attain that objective if we express it in this way.
[English]
The Deputy Chair: Could Senator White go to his second amendment which would cover that?
Senator White: The second amendment is on page 2.
The Deputy Chair: Let's go with his first amendment. Those in favour of the amendment?
We have two senators who wish to question this particular section.
Senator Batters: I wanted to make a quick comment in response to what Senator White was saying about what the House of Commons sponsor of the bill was relaying to this committee about, no, that's not the intent, but he said quite a different thing in front of the house committee.
It seemed that the reason that he had taken that different position here was because he was concerned about any amendments to this particular bill getting made. He seemed to have a very strong concern that that would delay things because it would then have to go back to a cabinet committee for approval, or something like that, even though I pointed out that they meet weekly when the House of Commons is in session. But that seemed to be the reason for not wanting any sort of an amendment, even a very common sense one.
Senator White: Agreed.
Senator Pratte: You're a Good Samaritan, it seems to me, if you have sought assistance. That's the main thing.
The way the amendment is phrased is that you may remain at the scene and benefit from the exemption even if you had not sought assistance.
Senator White: It's a replacement of a word for a word. We have clarified that the person who seeks assistance benefits from the exemption whether or not he or she remains at the scene.
Senator Pratte: I understand that's the intent.
Senator White: That's the intent.
Senator Pratte: I'm not sure that's what it says.
Senator White: When we met with the lawyers, of which I am not one, and I guess maybe Mr. Saint-Denis can probably answer this better —
Senator Pratte: I'm not either.
Senator White: It was clear to them that adding the word "or'' would broaden the exemption to those who choose not to remain, which was our intent.
The Deputy Chair: Mr. Saint-Denis, would you have a comment on that?
Mr. Saint-Denis: There are two effects, I think, that bringing "or'' to this clause would have. The first is the one that was raised by Senator Dupuis, which means that the person could call for assistance and then benefit from the protection while not having to remain.
My sense of where this bill wanted to go was to encourage individuals to remain at the scene because they are the people who may be best placed to provide information about the substance that was ingested that resulted in the overdose.
If the encouragement to stay at the scene is not there, you may not be able to benefit from the information that individual may have because he may have fled. That might be a genuine concern.
Senator White: I appreciate that commentary. Certainly, that's what the sponsor and the witness told us here, but I can tell you the sponsor and the witness in the house stated categorically that it would include people who did not remain at the scene. In fact, the witness was asked that question specifically and replied no.
I agree with Senator Batters. It changed, I believe, when arriving here believing that we would have an amendment if that wasn't the intent.
I can tell you that in front of the house, and that's why I'm not worried about scope change, he was very clear in the house committee that his intent was to cover people whether they remained or not. He was asked that question, in fact, along with a number of others surrounding that.
[Translation]
Senator Dupuis: Would Senator White be willing to consider a change to his amendment, a rewording, so that we can meet his concern? That is to say that the sentence would end after "as a result of that person having sought assistance.''
[English]
Senator White: If I may, that was originally what we presented to the legal support we had, and they recommended changing "and'' for "or'' and leaving the sentence. I'm not a lawyer, but that was the original suggestion I made, that we would end with "sought assistance.''
I will leave it to those who are legally trained as to which of those covers our intent or my intent and that Justice Sinclair, of course.
Senator Sinclair: We were, in the course of our discussion, recalling the comment from the mother of the young man who passed away; her name was Christine Padaric. She was one of the witnesses here. She talked about the fact that her son suffered for a long time before he died, and that numerous people were offering him assistance directly but nobody called the police. She wanted people to remain at the scene and to call the police, so she wanted both of those situations covered.
The way this proposed subsection has been drawn, it appears that with the word "and'' that it's only the person who calls for assistance and remains who is protected. The person who does not call but who does remain is not protected here, even if they are helping by giving medical assistance to that person.
That was what we were trying to deal with in this amendment.
Senator White: They may not call but they may help.
Mr. Saint-Denis: I would like to draw the committee's attention to proposed subsection (3), which adds precision to the protection. Here, the exemption provided is ". . . to any person who is at the scene upon the arrival of the emergency medical or law enforcement assistance.'' That suggests that it's not just the person who has called; it is more than that. It could be someone else who is also at the scene who may be providing assistance but has not made the call.
The Deputy Chair: That may be overshadowed by another amendment that may be moved in a moment.
Senator Joyal: The issue that you just raised, any person who is at the scene means that it would not cover the person suffering from the overdose who is calling, which is the point I raised earlier on.
Senator White: So we're clear, the decision makes it precise about the ambiguity, I would argue. We're trying to make it less ambiguous, and then in the precision we will have another amendment to hopefully further clarify what is meant.
The precision, if it was just another "sub,'' then I think Mr. Saint-Denis might be correct. I think both are required. That's why I think the next amendment would be helpful.
The Deputy Chair: Are we ready to consider this particular amendment?
Those in favour of the amendment? Those as opposed to the amendment?
It's carried.
Senator White: Opposed?
Senator Dupuis: The first part of the amendment? The "or''?
[Translation]
I had understood what you wanted, which is that we ensure that someone ask for assistance, without necessarily staying at the scene. If we want to remove that obligation, we don't want him to have to choose between phoning and staying.
[English]
That's what I understand in the "or,'' or having to remain on the scene. You can do both, either seek assistance or remain. It's up to you. It depends.
[Translation]
I had understood that the bill wanted the good samaritan to seek assistance in one way or another, whether or not he or she remained on the scene. As you said to us, Mr. Saint-Denis, the exemption in paragraph 3 indicates that this will apply to any person who is on the scene, whether or not he looked for or asked for help.
I am not opposed to what you are trying to do, but the way it is expressed does not convey the idea that we want to keep the part about asking for help, which is the act of the good samaritan, no matter how the assistance is sought.
[English]
The Deputy Chair: I wonder if Senator White could read his next amendment, which deals with that very question. Could he read it out?
Senator White: The next amendment is on page 2, replacing lines 1 and 2, the first two lines in subsection (3), which now states:
(3) The exemption under subsection (2) applies to any person who is at the scene upon the arrival . . . .
The amendment reads:
"(3) The exemption under subsection (2) also applies to any person, including the person suffering from the overdose, who is at the scene upon arrival of the emer-''
So it's any person at the scene.
When we heard from the lady who lost her son who said other people were helping out but didn't make the phone call, they would also be covered. In this case, the exemption applies to any person, because there are questions — and I think Senator Joyal appropriately raised them — as to whether or not the person who had the overdose is actually covered prior to naloxone. That we bring them back to life long enough to charge them doesn't seem fair either.
I think this would bring clarity, along with the "or'' rather than "and,'' that any person at that scene could be exempt.
[Translation]
Senator Dupuis: The simplest thing would be that I abstain regarding the first part. I understand very well and these are two separate things, the first and the second.
Senator Joyal: The person who picks up the telephone and calls emergency services is certainly a good samaritan, but it can also be someone who stays with the person while waiting for the police or emergency responders to arrive.
I think that the amendment proposed by Senator White covers the two circumstances in which one can act as a good samaritan. You can be a good samaritan and not necessarily be the one who called, but you stay with the person to help him or provide the necessary information to the emergency responders so that they can administer the required treatment. I think that in a way the amendment proposed by Senator White broadens the notion of good samaritan.
Senator Dupuis: Yes, quite so. I agree.
Senator Joyal: I don't think that this negates the object of the bill as such. On the contrary, I think that this would allow people to recognize the other circumstances in which one may be perceived as a good samaritan.
Senator Dupuis: That answers my question.
[English]
The Deputy Chair: The first amendment moved by Senator White, are we ready for that question?
Shall the first amendment moved by Senator White pass? Those in favour? Contra minded? Carried.
Now we will go to the second amendment at the top of the page that he just read out.
You've explained this sufficiently, Senator White?
Senator White: If there are questions, I could answer those.
The Deputy Chair: Any questions concerning that? If not, we can vote on that one.
Those in favour? Those opposed? The amendment is carried.
Now we come to a major amendment I think to be suggested by Senator Sinclair.
Senator Sinclair: Those were the easy ones.
This is what we can loosely call the administrative penalties amendment. You have it in front of you in both official languages. If you wish I'll read it all out.
The intention of the amendment is to cover those situations where people are charged with something other than simple possession because they're on probation, parole, conditional release or bail as a result of calling for assistance and coming into contact with police. This is the way the amendment is worded:
That Bill C-224 be amended in clause 2, on page 2, by adding after line 3, the following:
"(4) No one who seeks emergency medical or law enforcement assistance because they, or another person, are suffering from an overdose, or who is at the scene upon the arrival of the assistance, is to be charged with an offence concerning a violation of a pre-trial release, probation order, conditional sentence or parole relating to an offence under subsection 4(1) if the evidence in support of that offence was obtained or discovered as a result of that person having sought assistance or having remained at the scene.
(5) Any condition of a person's pre-trial release, probation order, conditional sentence or parole relating to an offence under subsection 4(1) that may be violated as a result of the person seeking emergency medical or law enforcement assistance for their, or another person's, overdose, or as a result of having been at the scene upon the arrival of the assistance, is deemed not to be violated.''.
The Deputy Chair: Any further comment?
Mr. Saint-Denis, have you had a chance to think about this? I know this is on the spot.
Mr. Saint-Denis: Clearly it introduces a whole new area of protection. I note that all the violations of any of these orders, probations and bail and so on is only limited to offences regarding possession of drugs. If a person is carrying a firearm in breach of one of these orders, then he's not protected.
At the very least, you've expanded the nature of the protection, but you limit it to the subject of the bill, which is protection in respect of possession of drugs.
The Deputy Chair: Senator Sinclair, does that meet with your satisfaction?
Senator Sinclair: That's the intent and I think that's what it says.
The Deputy Chair: Is there any further comment concerning this?
Senator Joyal: The Good Samaritan intention applies only if the person who calls or will bring support to the overdose person is himself or herself under an overdose. That's essentially how we read (2) and (4) now. Proposed subsection (2) states quite clearly:
(2) No one who seeks emergency medical or law enforcement assistance because they, or another person, are suffering from an overdose . . . .
You have to suffer from an overdose to be exempted.
The Deputy Chair: There is a little bit of disagreement, Senator Joyal, on the literal interpretation of the words.
Senator Joyal: We're amending the Criminal Code that is going to be interpreted by the police, a Crown prosecutor and a judge. We have to be very sure.
In my opinion, a person at the scene who is either under the influence of drugs, or not, would be exempt the way that the bill seeks to exempt them. But when you say that "because they, or another person, are suffering from an overdose,'' they are included in the overdose. That's what it says here. They have to be under an overdose to be exempted.
The Deputy Chair: There's an "or'' there, though.
Senator Joyal: But it says "they, or another person.''
Senator White: Two different persons. So they don't have to be: "they, or another person.'' If it said "they and,'' it would be different.
Senator Sinclair: This is grade 6 grammar.
The Deputy Chair: I never disagree with Senator Joyal.
Senator Batters: My question is for Mr. Saint-Denis, and it might address this because I agree with Senator Joyal. I think "they, or another person, are suffering from an overdose'' is problematic. After that portion of the sentence, Senator Sinclair's amendment says, " . . . or as a result of having been at the scene upon the arrival of the assistance . . . .'' Does that clarify it, Mr. Saint-Denis? Does that take it out of the scope to allow somebody who is not suffering from an overdose to be covered by this particular purview of this section? It doesn't just say "or'' once. It says "they, or another person, are suffering from an overdose,'' but then it goes on to say "or who is at the scene upon the arrival of the assistance.''
The Deputy Chair: Mr. Saint-Denis is thinking about what you said, Senator Batters.
Ms. Brouillet: I think it's interesting to go to the French version of 4.1(2). Sometimes the French version can help the court interpret the English version.
The bill as it stands says, "Quiconque demande . . . .'' In order to further understand the intent of Parliament in (2), the wording follows in (4).
The Deputy Chair: We always go to the French when we want clarification.
[Translation]
Ms. Brouillet: There you go. The text reads as follows, and I quote:
No one who seeks emergency medical or law enforcement assistance because they, or another person . . .
[English]
In the French version it's very clear.
I think in the English version the use of commas might lead to a different interpretation, but the French brings clarity and will help the court interpret it properly. I would suggest that the court would definitely use the French version to enlighten the English version in this context.
Senator Joyal: I don't want to extend the debate, but as Senator Batters has mentioned, we're dealing here with the Criminal Code. If we have to go to the two versions to try to understand the meaning, I think we have a drafting problem, honestly. When we are dealing with an issue related to drug consumption whereby we're creating an exception, I think the scope of the exception has to be very clear because the court will have a tendency to interpret it narrowly.
I totally support the amendments put forward by Senator White and Senator Sinclair because they give some clarity on the intention. If we are to have clarity on the status of the persons who call the police or remain at the scene, I think we have to understand the condition of that person. Does that person have to suffer from being under the influence of drugs? Essentially that's what we have to clearly understand.
I have no objection to the Good Samaritan objective to cover a person who is not under an influence but might have been charged for possession. The police arrive and that person has drugs in his pocket, but that person is not suffering from an overdose. It is covered by proposed subsection (3) on page 2, but it is not under subsection (2), or it is not under subsections (4) and (5) that we're adding here. That's essentially the clarity I'm looking for.
Senator Batters: I didn't have my question answered because you were discussing the bill. I was talking about Senator Sinclair's amendment and whether the phrase "or who is at the scene upon the arrival of the assistance'' takes away the concern that exists in the bill. I'm just talking about the amendment, whether that particular clarifying phrase takes away that same question.
Mr. Saint-Denis: The approach in terms of the phrase "or who is at the scene upon arrival'' for me does not take away from the interpretation issue that Senator Joyal has. I never had that issue. In reading proposed subsection (2), I interpreted that to cover both the person who suffers from an overdose and someone who does not. In (4), the approach is different and is equally clear.
Senator Batters: Given the explanation you were giving us earlier about the types of offences that could potentially be included in this, gun charges and that sort of thing, and the significant potential expansion of the scope, I personally am not comfortable expanding this bill to that. My colleagues may feel differently, but personally, I'm not comfortable with that level of expansion. So thanks for that comment.
Senator Sinclair: Let me pretend to be brilliant by suggesting I may have a solution. This is a proposal to Senator Joyal to see if it addresses his concern.
It may be because the word "they'' is combined with the word "are'' and it excludes "another person.'' I suggest that if the amendment were to read in the first line: "No one who seeks emergency medical or law enforcement assistance because that person, or another person, is suffering from an overdose . . . .''
Senator Joyal: Perfect.
The Deputy Chair: The amendment being suggested by Senator Sinclair is to change the word "they'' in line 15 to "that person'' to bring it into compliance with the French version.
Senator Sinclair: And the word "are'' in the next line to "is.''
The Deputy Chair: The word "are'' to "is.'' Is everybody in agreement with that?
Mr. Saint-Denis, did you have a reaction to that?
Mr. Saint-Denis: I see no difficulty. Our drafting style is to refer to a person when we need to. In order not to refer to a "him'' or "her,'' we use "they.'' That is why that is there. This approach does it as well.
My only observation is this proposed amendment is to proposed subsection (2), I believe. You might want to do the same thing in (3) and (4).
The Deputy Chair: Senator Pratte just brought that up.
Are we in agreement that that amendment shall be included in proposed subsection (2), at line 15? Let me just read it out:
. . . ment assistance because that person, or another person, is suffering from an overdose . . . .''
Is the committee in total agreement on that?
Hon. Senators: Absolutely.
The Deputy Chair: The committee is in total agreement.
Jessica Richardson, Clerk of the Committee: We have to break. We have to get a drafter here to draft the French. We cannot consider an amendment in only one language.
The Deputy Chair: Senator Joyal, do you have a suggestion as to what procedure we should follow now? We need to amend the French as well.
Senator Joyal: We need to adopt the amendment in French also. Otherwise, we are really breaking the Rules.
The Deputy Chair: We will have to put this off.
Senator Pratte: The French version, in my view, is very clear.
[Translation]
Senator Joyal: It is clearer in French, but we have to do this in the French version for motions 4 and 5 as well.
[English]
The Deputy Chair: Mr. Saint-Denis, do you have anything to add?
Mr. Saint-Denis: When we draft legislation, we don't draft in one language and translate it into the other. The drafters work side by side. The approach that will be taken in one language does not necessarily reflect exactly the same structure or the same approach to achieving the same provision.
The observation that the French, as it stands, is as clear now as the English with the amendments would be fine.
The Deputy Chair: It doesn't address the problem with the amendment, though, Senator Sinclair. Changes have to be made there as well. Is that my understanding?
Senator Joyal: (4) and (5) are correct in the French version of Senator Sinclair's. That's what I requested, that the text of (4) and (5) be included in proposed subsection (2) to avoid the uncertainty that I identified.
Senator Sinclair: I'm not a drafter, and I suppose we should verify with the drafters that this is the case.
The way I read it, the French versions of the amendments are already correct, and the English amendment that I've suggested, which Senator Joyal and we have now agreed with, actually make the English comply with the French version.
The Deputy Chair: Is it our conclusion, then, that we not continue with this matter at this time to allow for the proper services to be done by our legal department on the bill?
Ms. Richardson: I'm emailing the law clerk's office. They are looking at it right now. Perhaps we could pause this and move to the other bill and then come back to this to give them a chance to respond.
The Deputy Chair: The clerk has made that suggestion. Is that a good suggestion?
Ms. Richardson: That we pause.
The Deputy Chair: As the clerk says, we'll pause, leave the matter there and move on to our next bill and reconvene at a time when it's possible to do so. Do we have agreement to do that?
Hon. Senators: Agreed.
The Deputy Chair: We thank the witnesses. Could the witnesses remain for the next piece of legislation? No?
Mr. Saint-Denis: As much as we'd like to, we are committed to this bill only.
The Deputy Chair: Thank you for your assistance today. It was wonderful that you showed up to give us assistance.
Mr. Saint-Denis: It has been a pleasure, senator. Thank you very much.
The Deputy Chair: We will now move on to Bill S-231. Is it agreed that the committee proceed to clause-by-clause consideration of Bill S-231, An Act to amend the Canada Evidence Act and the Criminal Code (protection of journalistic sources)?
Hon. Senators: Agreed.
The Deputy Chair: Shall the title stand postponed?
Hon. Senators: Agreed.
The Deputy Chair: Shall the short title in clause 1 stand postponed?
Hon. Senators: Agreed.
The Deputy Chair: Shall clause 2 carry?
We have a suggested amendment to clause 2, and we'll call on Senator Carignan for some introductory remarks.
[Translation]
Senator Carignan: Simply for clarification, I am replacing Senator Boisvenu and I am sitting in his seat. I am not here as Leader of the Opposition.
We discussed the definition of "journalist'', and I know that people wanted a somewhat more restrictive definition so that we can properly frame the concept of journalist. Upon reflection and discussion, it appears important to introduce the notion of consideration.
And so I move that Bill S-231 be amended in clause 2, on page 1, by replacing line 13 with the following (i.e. after the words "regularly or occasionally''): "either regularly or occasionally, for consideration, to the collection, writing or.'' I move that we introduce the notion of consideration into the definition of "journalist,'' to add to the important nature of that role.
[English]
The Deputy Chair: Does everyone have a copy of the amendment?
Some Hon. Senators: No.
The Deputy Chair: Senator Joyal, do you wish to say a few words before we commence?
Senator Joyal: Yes.
I have a question to Senator Carignan. When you introduced the notion of rétribution for consideration, would you exclude anyone who would do it on his or her own? It could happen that somebody has the capacity to be a journalist without having to be paid or to be compensated by an employer.
[Translation]
Senator Carignan: The concept of consideration is broader than that of remuneration. If a person expects to be paid for work he does under a contract, that would be included. This excludes student newspapers, because students do that work on a volunteer basis. This is a better framework.
Senator Joyal: I am not opposed to the objective of the amendment, but I am trying to understand the impact it could have on the categories of persons who are excluded.
Senator Carignan: I think that volunteer bloggers and volunteer contributors to student networks would not be covered. I believe this also meets a request from police services. I am particularly sensitive to the argument from police services saying that they have to apply the Criminal Code and determine whom it applies to. We want a certain level of professionalism to be integrated, in order to know whether we are dealing with a journalist or not, so as to avoid having just anyone claim to be a journalist. This reduces that potential.
Senator Joyal: Perhaps I should put the question to Senator Pratte, who is a journalist. In order to become a member of the Fédération professionnelle des journalistes, the Quebec federation of professional journalists, do you have to be an employee? In other words, who would be covered or excluded by this bill among the members of the federation of professional journalists, or other professional associations of journalists? Is the fact of being paid a criterion for admission to a professional association of journalists?
Senator Pratte: No, not to my knowledge, but you know, journalists are known to be allergic to defining the term.
Senator Joyal: I'm talking about the Fédération professionnelle des journalistes, so my question is specific.
Senator Pratte: I would tend to think that there is a need to circumscribe the group we are addressing, to some degree, for the purposes of the bill. We want to prevent the privilege we are extending from being applied indiscriminately — even if we agree that this is not really a privilege being granted to journalists, because our purpose is to protect the sources. It should not apply, for instance, to a blogger or to someone who publishes a current events commentary on social media or on Facebook, and who may indeed have confidential sources, but does not really practise the profession of journalist.
Indeed, that recommendation was made to us by several large media outlets who came to testify before the committee, including La Presse and CBC/Radio-Canada. They recommended that we have a stricter definition and that we limit the definition to journalists who are paid, so as to protect a level of professionalism, while also opening the door to protecting freelancers. This definition can cover freelancers, people who do this work part-time, but who are nevertheless paid.
Senator Joyal: I am going to word my question differently. What conditions must you satisfy in order to become a member of the Fédération professionnelle des journalistes? For instance, if I applied to become a member of that federation, would I be admitted?
Senator Pratte: No, because you do not practise the profession of journalism.
Senator Joyal: That is to say that I am not remunerated to write.
Senator Carignan: The fact of being a senator would probably also be recognized as an activity that —
Senator Joyal: I am not talking about being a senator. Let's suppose I am not a senator.
Senator Pratte: You have to be working as a journalist, and it is not a matter of compensation in the eyes of the Fédération professionnelle des journalistes. For instance, students have a status within the federation, and they can be members even though they are not paid for what they do. The criterion is, rather, that you exercise the profession of journalist. There are members of the federation who would not be covered by this bill; that is correct.
Senator Joyal: That is what I wanted to understand.
[English]
The Deputy Chair: Any further comments?
Senator Boniface: Thank you for the amendment. I just wondered if there is any information on the context on the issue raised by the police yesterday on the definition of "media.'' Are you satisfied that "media'' frames it enough?
Senator Carignan: I have a reflection on that, but I'm not ready to have an amendment. I started to discuss this with Senator Pratte this morning to maybe make a subcategory of information media. So with the notion of information, it will probably answer the concern of Senator Sinclair also, where the main media will usually publish news in the public interest.
But I'm not there. I prefer to wait and continue our discussion and reflection on that, and maybe have more discussion at third reading on this notion.
Senator Joyal: Once you qualify the type of media, it would need to be reassessed in terms of the exclusion and the kind of definition you would give to the category of media that you want to cover with the bill.
I also heard what the police said, and I was concerned by that. I said we all know, naturally, what we mean with this bill. We want to cover the professional journalists, or those who have a professional capacity to inform the public or comment about issues that have a public interest.
With what kind of media and what kind of support would you express those opinions? That's the definition of "media.'' It's more in the support than the act, per se, of expressing the views.
To define the media in relation to this bill, I was thinking, as I say, after I heard that yesterday — and I'm sympathetic to that, because we certainly don't want the bill to be stretched to a point where we go beyond what is reasonable in relation to what we want to achieve.
Do we have a "paraphrase,'' as we say in French, to define the media in relation to the Criminal Code and the Canada Evidence Act here?
[Translation]
Senator Carignan: I agree with Senator Joyal. That is why I am not yet ready to suggest this amendment or to discuss it.
In my opinion, the bill has to be seen as a whole. We must not forget the definition of "journalistic source'' also, which states that there has to be an agreement with the person, there has to be an undertaking, a commitment to maintaining the source's anonymity in return for information provided in the public interest.
That concept is usually accompanied by a certain professionalism in the context of the work the person or journalist does. The act as a whole has to provide a framework for the purpose of restricting this, in practice, to certain categories of persons.
[English]
Senator Joyal: What we're dealing with here is freedom of the press. That is the sense of the principle that underlies everything in there, the way I read the bill. So it's the media in relation to freedom of press, as much as the journalists we're talking about. When we try to define various elements of notions there, it's always in relation to the freedom of the press, which is recognized as a democratic right in Canada.
That's why, as I say, when I try to understand or do the exercise of reflecting how we should define the word "media,'' it's essentially interconnected with freedom of the press. That's how I think the court would interpret it.
Do we need to qualify it to be sure that the court will have the guidelines to approve or go through the procedure that we're expressing in the bill? I thought about it, but I didn't come with any kind of suggestion for you that would restrict the definition of "media'' to the freedom of the press.
The Deputy Chair: There are other senators that want to come in on this. We have five amendments to this bill coming up.
[Translation]
Senator Carignan: That is why we should discuss the amendment, and not things that do not constitute an amendment.
[English]
Senator Joyal: It was raised in the discussions.
The Deputy Chair: I'm in your hands. It's going to be virtually impossible to deal with all of this.
Senator Sinclair: If we have an answer to the discussion we had with regard to the previous bill, why don't we will deal with that and we'll rearrange our schedules to discuss this particular bill at the next meeting. The proposed amendments are going to take us longer than the time we have today anyway, but we could finish the other bill now if we can discuss that amendment.
The Deputy Chair: Is the committee in agreement with that? We're in a difficult situation. We'll get to pass Senator Carignan's bill at our next meeting.
Senator Joyal: I think that what we could do on a common understanding is we have the amendments of Senator Carignan now. We could look into it individually. That would be helpful. We would have knowledge of the amendments. If we have questions for Senator Carignan, who is the sponsor of those, we could ask him for additional information so that we would be able to proceed at the next meeting quicker, because we would have done that exercise.
The Deputy Chair: Is that the general feeling of the committee? Okay. So that's our decision.
We will refer back now to the amendment Senator Sinclair proposed earlier. I will ask the clerk of the committee to repeat what the law clerk's office has recommended to us concerning the wording.
Ms. Richardson: The law clerk says there is no change needed to the French version, but there is a minor issue with the French in your amendment for subsection (4) and (5). They recommended it be changed to ''d'agents d'application'' instead of "d'agents chargés de l'application.''
The Deputy Chair: In what line?
Ms. Richardson: If you give me one second, I'll figure out what that line is.
The Deputy Chair: We could have Senator Joyal read that, because I think he understands the line.
Ms. Richardson: The second line in (4) and also the fifth line in (5), in the middle. So instead of ''d'agents d'application,'' they are recommending it should be ''d'agents d'application.'' As the amendment is still under consideration, if you are in agreement to make that, they recommend that change to the French.
The Deputy Chair: Senator Joyal, does that make sense to you?
Senator Joyal: I will read the English first to understand the intention. So they would translate "law enforcement assistance'' by "d'agents d'application de la loi,'' okay.
The Deputy Chair: Senator Dupuis, are you in agreement?
Senator Dupuis: Yes.
The Deputy Chair: She has taught the subject for many years. So we are in agreement with that?
Senator Sinclair, are you in agreement with that one change made?
Senator Sinclair: Yes.
Ms. Richardson: And the previous wording changes to the English which is sub (2), which is new, and (4).
The Deputy Chair: We have already dealt with the other ones. This is the last amendment.
Are we in agreement with that one minor change to this particular amendment?
Senator Joyal: With the change we made earlier to the English version whereby the English version be in sync with the French one. I think you should put the question formally so that we can adopt it.
The Deputy Chair: Does the committee agree to make the following amendments to the proposed motion to amend put forward by Senator Sinclair, in (4), at the end of the first line, substituting "they'' for "that person,'' and in line 2, after "or another person,'' replacing "are'' with "is.''
Senator Joyal moves —
Senator Joyal: He is the godfather.
The Deputy Chair: Senator Sinclair, do you move that?
The second change is in the French version, as was communicated by the clerk from the law office. Are we agreed?
Hon. Senators: Agreed.
The Deputy Chair: Now we're going to vote on the clause.
Is there agreement that we approve the clause, as amended?
Some Hon. Senators: Agreed.
An Hon. Senator: On division.
The Deputy Chair: On division.
Shall clause 2, as amended, carry?
Senator Joyal: With the amendment.
The Deputy Chair: As amended.
Senator Joyal: As amended, yes.
Ms. Richardson: For clarity's sake, you also verbally proposed an amendment to proposed subsection 4.1(2) on line 15: ". . . assistance because that person, or another person is . . . .''
The Deputy Chair: We've already done that.
Ms. Richardson: We had to go to the law clerk to make sure the French needed to be changed. You haven't actually made a decision on that proposed amendment. It's separate.
The Deputy Chair: We put the question. As amended, as referenced by the clerk, shall it carry?
Some Hon. Senators: Agreed.
An Hon. Senator: On division.
The Deputy Chair: On division.
Shall clause 2, as amended, carry?
Hon. Senators: Agreed.
The Deputy Chair: Carried, on division.
Shall clause 1 carry?
Some Hon. Senators: Agreed.
An Hon. Senator: On division.
The Deputy Chair: On division.
The Deputy Chair: Shall the title carry?
Hon. Senators: Agreed.
The Deputy Chair: Agreed.
Shall the bill, as amended, carry?
Some Hon. Senators: Agreed.
An Hon. Senator: On division.
The Deputy Chair: On division.
Should we have observations?
Senator White: I would actually like to bring forward an observation that:
The committee strongly supports the intent of the bill and has adopted the amendments to strengthen the bill. The committee encourages the Senate and the House of Commons to consider the proposed amendments as expeditiously as position so that the measures in the bill may be implemented as quickly as possible.
That's primarily because the proposal of the bill from the House of Commons identified concerns about us getting this moving. I think, if nothing else, we can at least send a message to the House of Commons that the Good Samaritan bill is a good piece of legislation that is much improved and that we would like it to be looked at immediately.
The Deputy Chair: Let me read out again what the senator has just suggested. The observation would be this, concerning Bill C-224:
The committee strongly supports the intent of the bill and has adopted the amendments to strengthen the bill. The committee encourages the Senate and the House of Commons to consider the proposed amendments as expeditiously as position so that the measures in the bill may be implemented as quickly as possible.
Is it agreed?
Senator Joyal: I would add, "to strengthen and clarify.''
The Deputy Chair: "Amendments to strengthen and clarify the bill.''
Senator Joyal: You have no objection, Senator White?
Senator White: No.
The Deputy Chair: "To strengthen and clarify the bill,'' in the first line.
Is the steering committee empowered to approve the final wording and the French?
Hon. Senators: Agreed.
The Deputy Chair: Do I have the authorization to report the bill, as amended, with observations, to the Senate?
Hon. Senators: Agreed.
The Deputy Chair: Agreed.
Good work, senators. We'll see you back in the Senate.
(The committee adjourned.)