Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue No. 62 - Evidence - May 16, 2019
OTTAWA, Thursday, May 16, 2019
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-75, an Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts, and to make consequential amendments to other Acts, met this day at 10:30 a.m. to proceed to clause-by-clause consideration of the bill.
Senator Serge Joyal (Chair) in the chair.
[Translation]
The Chair: Honourable senators, welcome to this morning’s continuation of our clause-by-clause consideration of Bill C-75, an Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts, and to make consequential amendments to other Acts.
[English]
It is my pleasure to welcome you this morning, honourable senators. We did a lot yesterday. You will remember that we asked the Senate legal adviser and Department of Justice officials to join their knowledge and expertise around new section 196.1. The documents are being circulated around the table. I will leave honourable senators the time to look it over so that everyone has the opportunity to see the proposed changes that have been made in the text, according to the instructions that were given to them.
My intention is to call the discussion on those changes later, after we have completed our list of amendments, so that we proceed with the work on a sequential basis. At the end of our consideration of the various clauses I will return to 196.1, if that meets your expectations, honourable senators.
[Translation]
Senator Dalphond: Can we continue the debate on the proposed amendment?
The Chair: Yes, of course. We are picking up where we left our work yesterday, at clause 225. I repeat what I said earlier: we will go back to clause 196.1 at the end of the meeting, so that we do not slow down the progress of the work.
Senator Dalphond: I have some comments on the amendments, but I can wait until the end.
The Chair: I know that you are a patient man with an excellent memory, who will not forget. So, we were at clause 225 and there is an amendment, number CPC-225.79.
[English]
The amendment is identified as CPC-225.79. Honourable senators should have a copy of that amendment. It is, of course, an amendment that I think is introduced by Senator Boisvenu.
[Translation]
Senator Boisvenu: Yes, welcome everyone.
It is moved:
That Bill C-75 be amended in clause 225, on page 79, by replacing lines 26 to 29 with the following:
“against their intimate partner;”.
Bill C-75 introduces a new measure called for by many organizations that assist women who are victims of domestic violence. I myself have been working for almost two years with a group of six or seven women. All those women were victims of attempted murder. They all lived through quite an intense period of domestic violence. One of the things we worked on as a group in my office was to see how we could reduce the number of women being murdered in Canada. Each year, actually, 50 women are murdered by their spouse or former spouse. In Quebec, that is the equivalent of one École Polytechnique per year, an average of 15 women murdered. Unfortunately, these murders take place almost every month, so the media are talking about them almost constantly. If the murders happened on the same day of the year, I believe that the government would have taken measures to better protect those women.
One of the measures that I was particularly taken by, in fact, is the reverse onus. What does that mean? When judges have before them a former spouse or a spouse who has been violent to his wife or former wife, that individual must prove that he does not pose a danger for the victim, rather than the Crown having to prove that he does pose a danger for the victim. It is important to know that about 50 per cent of former spouses released before their trial will breach their bail conditions. Fifty per cent is a huge number. Of those offenders who do not abide by their bail conditions, 50 per cent commit acts of violence that can even lead to a death. So I completely share the opinion of organizations that have come to testify before us, such as the Association des familles de personnes assassinées ou disparues, which sadly does not work with women who are alive, but with the families of wives or ex-wives who have been murdered. This is what they told us:
As Bill C-75 is written, the reversal of the burden of proof would apply only after a repeat offence.
So, basically, we are allowing a former spouse to attack his wife once. Then, the state will take it as proven that he is dangerous and, for a second attack, the burden of proof is reversed. Those organizations see that as quite unacceptable. When a spouse appears before a judge and has demonstrated great violence towards his wife, the reverse onus should apply immediately. For a repeat offence, it is often too late. I will stand up for those organizations and those women who have been victims of domestic violence. I will stand up for the organizations that protect the women who have been attacked by asking you to amend this clause so that the reversal of the burden of proof applies immediately when there has been an act of violence towards a woman. This means that the spouse or former spouse must prove that he is not a danger for that woman if he wants to be released. Being released is a right, I would say a privilege, granted by the court. I feel that a release on bail must come with zero risk for the wife or former wife. That is why I am submitting this amendment to you.
The Chair: We are debating the amendment; are there any other comments?
Senator Dalphond: First of all, I must say that I share Senator Boisvenu’s very commendable objective. This is to require measures that encourage prevention rather than to impose sanctions on someone who has killed or injured someone else. The objective is very commendable, but the fact remains that section 11 of the Canadian Charter of Rights and Freedoms applies here, specifically the constitutionally guaranteed right to be presumed innocent until proven guilty. The amendments in question, as proposed by the department — and an official from the department can correct me if I am wrong — deals only with repeat offenders. This is in order to meet the test in section 1 of the Charter that a constitutionally protected right is subject only to limits that can be justified in a free and democratic society. The legislation proposes to retain the repeat offence criterion, based on the sociological evidence that shows a higher rate of recidivism and a greater risk when someone has previously been involved in behaviour leading to acts of family violence.
However, this proposal is that the presumption is reversed in all cases, and personally, I do not think that could meet the test in section 1. I am comfortable in that position because of the discussion I had with Professor Sheehy from the University of Ottawa, who appeared before us last week, I believe, and with whom I had a discussion on this issue after the committee meeting. I asked her whether we should not extend the reverse onus to the first charge, and she agreed that the provision would not meet the test in section 1. The risk, therefore, is that the provision could be declared invalid, both for the first offence and for anyone charged with a repeat offence.
Consequently, if we want to maintain the objective, which is to have a reverse onus, I think it would be more prudent to do it only with those already convicted of an offence.
[English]
Senator Batters: I wanted to speak in support of this particular amendment of Senator Boisvenu. Throughout the study of this bill, we heard many witnesses who advocated for this very proposition, indicating that many times these types of serious domestic violence incidents are the first time that someone has been criminally charged. However, we heard from many witnesses with significant experience in domestic violence shelters and other types of work in this area, such as victims’ groups, that these types of incidents, unfortunately, may have already occurred many times, but that this was the first time the victim had the courage to go to the police.
Frankly, we have almost an epidemic in this country of domestic violence, and we need to start taking serious action against it. I think a reverse onus is exactly the sort of thing that will actually help women and those victims of domestic violence in this particular area.
Speaking to the Charter issue, we didn’t hear very much evidence saying that this may not meet the test of the Charter. I would submit that we would have to hear significantly more about it before I would be convinced of that. In fact, given the considerable amount of domestic violence we have in this country, and the epidemic proportions of this issue right now, I think that it would stand a very good test of being saved under section 1. Thank you.
[Translation]
Senator Boisvenu: Let me quote Elizabeth Sheehy, whom Senator Dalphond told us about.
Discharges are not uncommon sanctions for men guilty of . . .
We know that men accused of domestic violence, or at least most of them — I had no idea — receive absolute discharges for different reasons, professional reasons, for example, or in order to travel to the United States or Europe.
. . . assaulting female partners, even for sometimes very serious assaults. Therefore, the reverse onus is framed too narrowly here. It should extend to all those found guilty of domestic violence offences.
That was her statement. I would remind my colleague Senator Dalphond that there is also a section in the Charter of Rights and Freedoms, section 7, that talks about the right to security of the person. I feel that the Supreme Court will have to decide what is important for our society: Protecting the life of those women, or protecting the release, or the presumption of innocence of men who may well murder them.
For me, protecting the women is most important. As my colleague said earlier, this is an epidemic. A reporter in Quebec has used the term “woman hunt.” Hunting season in Canada is now open. For example, in proportion to the population, more women are murdered in our country than in the United States
We have been saying this for years: I think we absolutely have to send a clear message to spouses or former spouses that the fact that they do not accept a decision about a divorce does not mean that they can murder their wife or former wife. We have to send a clear message and I feel that we have the opportunity to do that today.
Senator Dalphond: Can I ask Senator Boisvenu to read again the sentence from Professor Sheehy’s testimony? I think I actually heard that she was referring to people who had been convicted.
The Chair: Can you read the sentence again, senator?
Senator Boisvenu: Here it is.
Discharges are not uncommon sanctions for men guilty of assaulting female partners, even for sometimes very serious assaults. Therefore, the reverse onus is framed too narrowly here. It should extend to all those found guilty of domestic violence offences.
Senator Dalphond: That is my point. Thank you.
[English]
Senator Gold: I’m going to ask a question of the Department of Justice officials. While they get ready to come to the table, perhaps I can put it in context.
This is a terrible policy dilemma that the law has to struggle with. I read the Charter statement produced with regard to this bill. I just wanted to bring it to the attention of members of the committee. I would like a comment from our officials here. In talking about this area, the Charter statement says:
To be consistent with section 11(e) of the Charter, a reverse onus needs to amount to a “just cause” for denying bail . . .
It would extend to other provisions where you reverse the onus, of course.
. . . meaning that denial of bail must occur only in a narrow set of circumstances, and the denial must be necessary to promote the proper functioning of the bail system and not undertaken for any purpose extraneous to the bail system.
It goes on to say:
The following considerations support the consistency of Clause 227 with section 11(e) of the Charter. . . .
It would only result in a denial of bail for those accused persons who cannot demonstrate on a balance of probabilities that none of the three statutory grounds for pre-trial detention applies in their case.
It would be restricted to certain accused persons who have previously been convicted of the offence.
As a group, these individuals have been found to pose an elevated risk of violence, escalating the risk of reoffending towards their intimate partners. Therefore, the proposed reverse onus is narrowly tailored to promote the proper functioning of the bail system, specifically by ensuring public safety.
Do I understand correctly that that is the rationale? Can you help us understand how you interpreted the Charter?
Shannon Davis-Ermuth, Senior Counsel, Department of Justice Canada: That was the view of the department, that there was a necessity to have some narrowing to make sure that it was sufficiently tailored to capture the objective. The department is concerned with the rates of intimate partner violence. It is the most common form of reported violence against women in Canada. It is a serious problem, but also a large number of the offences captured by violence against an intimate partner are very broad. It could include very minor offences, and it also includes very serious offences.
I do not say this because I take domestic violence lightly, but I have seen cases where there might be a charge for throwing something that is not dangerous. That could be an assault. If someone were to throw something like a cabbage — and I’m not making light of it at all — but that would be considered an assault. To think that in bail court that a reverse onus should apply in that case, those are the types of cases that we would consider to be over broad and might mean that the protection did not withstand a Charter challenge.
The department’s other concern was raised with respect to counter-charging and dual charging. If the prior conviction is not present, it will apply more broadly and capture more people who should not be captured by that restriction.
I want to take it back to the conversation that was occurring about Professor Sheehy’s comment. Her comment in relation to absolute discharges, with respect, was not that there shouldn’t be a requirement for some narrowing. She was specifically commenting on the wording chosen with respect to the narrowing. She was speaking to prior convictions, because prior convictions themselves do not cover discharges. She was saying it should be worded differently, not that there shouldn’t be any requirement for the reverse onus to apply.
In terms of these same issues that the department was trying to address, if I could also draw the chair’s attention to proposed section 515(3)(a) of the Criminal Code. Because of this concern that all intimate partner violence should be taken seriously at bail, even where the reverse onus doesn’t apply, on page 78 Bill C-75 proposes to add another factor that does apply in all cases, regardless of whether or not there is a reverse onus:
(3) In making an order under this section, the justice shall consider any relevant factors, including,
(a) whether the accused is charged with an offence in the commission of which violence was used, threatened or attempted against their intimate partner . . . .
So even in cases where there aren’t prior convictions, it is a signal that this is a factor to be taken seriously by the courts.
The Chair: Thank you.
Senator McIntyre: Colleagues, I echo the remarks made by Senator Boisvenu.
As Senator Batters mentioned, we have heard from a lot of witnesses on domestic violence. I’ll just give you some names. I’m sure you remember their testimony. For example, Marion Buller, Chief Commissioner, National Inquiry into Missing and Murdered Indigenous Women and Girls, on May 8; Heidi Illingworth, Federal Ombudsman for Victims of Crime, May 8. She said, “I definitely said that the reverse onus is something good.”
[Translation]
We also heard from Bruno Serre, President of the Association des familles de personnes assassinées ou disparues, from Annie Saint-Onge, who lost her sister, and from Nancy Roy, General Manager of the Association des familles de personnes assassinées ou disparues, who appeared before the committee on May 8.
[English]
We also heard from Karen Wiebe, Executive Director, Manitoba Organization for Victims Assistance.
In voting, we should keep their testimony in mind.
[Translation]
Senator Dupuis: I wanted to ask the official from the Department of Justice a question. As I understand it, a justice of the peace must consider all factors, including whether the defendant is or is not accused of an offence in which violence was used, threatened or attempted. Whether or not he has been convicted, or whatever the person’s situation, is the justice of the peace required to consider that a factor?
[English]
Ms. Davis-Ermuth: It is. I didn’t mention, but also in the same section that I mentioned, 515(3)(a), where it requires a Justice of the Peace to consider whether intimate partner violence was used in the offence before them, there is an additional proposed amendment in paragraph (b) that requires them to take all prior convictions into consideration.
[Translation]
Senator Dupuis: Are we talking about violence being used, threatened or attempted, against an intimate partner, or also about the fact that the accused has or has not been convicted for a criminal offence, including a subsequent criminal offence, against his intimate partner?
[English]
Ms. Davis-Ermuth: Yes. And that would include prior convictions of intimate violence, but any other prior convictions as well.
[Translation]
Senator Dupuis: Senator Boisvenu, you will recall that we heard not only from the Service de police de l’agglomération de Longueuil, but also from Ms. Safadi, who works for the Longueuil police with victims of violence. She said something very important, in my opinion. It is important for all professionals to be committed to protecting women who are victims of violence, to supporting and standing with those women from the beginning of the process, even before they have reported their attacker, until the end of the process. For me, a conviction is strictly a technicality, and we want to change the act in order to change that. But it is essential for the provisions of the bill to survive a legal challenge under the Charter. I believe that one thing seems to be even more comforting, and it is the clause that we have just talked about. This is that the defendant being or not being charged with an offence in which violence was used, threatened or attempted, becomes a determining factor that the justice of the peace is required to consider.
[English]
Senator Batters: First of all, Ms. Davis-Ermuth, you indicated that you did not want to, in any way, be seen to try to minimize domestic violence; however, your example of how throwing a cabbage could potentially be an assault, I wanted to point out that, in all likelihood, police and prosecutors would not charge someone with an assault in that type of case. Yes, of course, it’s possible, but the number of cases that would have that minimal of an impact in the criminal courts would be tiny.
Instead, what unfortunately happens more often, at the other end of the spectrum, as we have heard at this committee in witness testimony about this issue, some female victims of domestic violence don’t get a second chance. They end up murdered the second time that their intimate partner commits a crime against them.
I wanted to point out, too, that the number of times in domestic violence incidents that female victims end up not pursuing criminal charges after they have initially pursued them is unfortunately still much too common because of fear. They are afraid of what will happen to them when their husband or other intimate partner is released from police custody.
That’s what we need to take into account. That’s why having a reverse onus in domestic violence incidents of all sorts, not simply for repeat offenders, is so important. Thank you.
[Translation]
Senator Boisvenu: First of all, reversing the burden of proof does not make the act that has been committed any worse. When judges listen to those who have been charged, they will be able to make a decision and determine whether the argument in their favour is reasonable or not.
Second, reversing the burden of proof for a repeat occurrence is detrimental to women. Why? Because the spouse knows that, the second time, the chances are good that he will stay in prison. He will be told, “The first time, you have a shot because we have to provide the proof and that is very difficult to do. However, the second time, you will have to provide the proof.”
The consequence of that will be to make things worse for women who are the victims of violence, because those women do not report. The problem with domestic violence is the lack of reporting. If they have to assume the burden of proof immediately, we may well see no more reports from women living through that hell.
Finally, I rely on the wisdom of the courts; in the current epidemic of domestic violence, they will be balancing respect for the law and the defendant’s presumption of innocence with the protection of women. It is my opinion that the courts, in their great wisdom, will decide that women must be protected first.
[English]
Senator Sinclair: The hard examples that are being put forward to justify this motion are but examples of the kinds of worst cases that the courts will be faced with.
I want to speak for a moment about the victims themselves in a different way, though. Senator Boisvenu suggests that the number of female victims who are charged with offences because of minor circumstances — and Senator Batters makes the same point, throwing a cabbage not resulting in a criminal charge — actually flies in the face of existing policy. The RCMP and most provincial jurisdictions, after a number of cases of domestic murder, develop policies requiring that all individuals who are alleged to have committed an act of violence have to be charged. The allegation itself is sufficient to give rise to the charge.
In Manitoba, speaking from experience, sitting in the provincial court as well as in the Superior Court, my experience in dockets, doing bails and bail reviews, shows that a significant number of men who are charged with offences against their spouses would, in the course of their interviews with the police, allege that they had themselves been abused by the wives and often the wives would also be charged. Then you have the situation of both the wife and the husband being on the same docket sometimes.
If a wife could be put in the position of having to justify her release, and because it’s a reverse onus situation, then economically she’s not in the same position as her husband. We often had situations where the husband was a well-to-do, middle class male and the wife was a stay-at-home mom who didn’t have a job or a place to go. He would allege that she was psychotic and crazy and doing all sorts of things and that she was constantly attacking him. How does she respond to that? How does she convince the judge she’s not? It’s almost like a gas-lighting situation.
I don’t have any difficulty in saying they would have the greater difficulty in a situation of cross charging like that of satisfying a judge that they’re good candidates for release.
The other factor I want to point out is that studies have shown that the number of women who are incarcerated — Indigenous women in particular — in the federal penitentiary system and have been charged and convicted of domestic violence offences for which they have been penalized have been shown to in fact have committed those offences in the course of defending themselves against their abuser — sometimes resulting in the death of the abuser, sometimes resulting in serious injury to the abuser.
The important thing to remember is they were charged because they themselves had come under attack. The process of justice doesn’t always work in their favour. I just want to speak for those who will be caught up in this kind of amendment where they will not be able to meet the test. That will be the population of women who are cross charged. That is a significant population with the no-discretion charging policy that police agencies, almost universally across the country, are following.
When somebody makes an allegation of domestic violence, out of an abundance of caution police charge everybody. That includes the spouse, who is really the victim and is often the woman. The result is that if she is also charged, her ability to make bail will be that much more difficult.
This proposed amendment fails to take into account the broad circumstances that these criminal offences can include. Senator Batters says that throwing a cabbage at somebody is not going to result in an assault charge. I had a case before me in provincial court where the wife was charged with assault for throwing a McDonald’s hamburger at her husband because he had slapped her. She was charged with assault. The fact of the matter is, police are being told they have no discretion; they have to charge.
We need to keep in mind that the important thing here is that the history of convictions is a factor that justifies a reverse onus, and that will meet the Charter challenge that’s going to arise if this amendment goes through. I’m not convinced that this amendment will meet the Charter challenge.
Senator Batters: Responding to Senator Sinclair, I did say, “in all likelihood.” Actually, one of my very first cases when I was a very young lawyer was dealing with a mischief charge where a young man had put an apple core on somebody’s car antenna. Yes, obviously things can happen, but I said, “in all likelihood.”
The points made by Senator Sinclair go to the major problem of dual charging. I don’t think we should discard something that is a very good amendment on this particular issue of reverse onus for domestic violence cases by becoming by the problematic issue of dual charging.
Senator Lankin asked about this dual-charging issue quite frequently during the study of this particular bill. I’m not sure if she has relayed an amendment on that particular issue, but it’s certainly something I would have been favourably inclined to support, because I agree that can be an issue. In my experience in the courts in Saskatchewan, I have not seen this type of situation exhibit itself as frequently as what Senator Sinclair is indicating.
Yes, that’s an issue that needs to be determined, but I don’t think we should discard a very positive amendment in trying to encapsulate everything into it.
The Chair: Thank you, senator. I understand honourable senators are now ready for the voice vote.
Keli Hogan, Clerk of the Committee: The Honourable Senator Joyal?
Senator Joyal: Abstain.
Ms. Hogan: The Honourable Senator Batters?
Senator Batters: Yes.
Ms. Hogan: The Honourable Senator Boisvenu?
Senator Boisvenu: Yes.
Ms. Hogan: The Honourable Senator Dalphond?
Senator Dalphond: No.
Ms. Hogan: The Honourable Senator Dupuis?
Senator Dupuis: No.
Ms. Hogan: The Honourable Senator Dyck?
Senator Dyck: I abstain.
Ms. Hogan: The Honourable Senator Gold?
Senator Gold: No.
Ms. Hogan: The Honourable Senator Housakos?
Senator Housakos: Yes.
Ms. Hogan: The Honourable Senator McIntyre?
Senator McIntyre: Yes.
Ms. Hogan: The Honourable Senator Miville-Dechêne?
Senator Miville-Dechêne: No.
Ms. Hogan: The Honourable Senator Pratte?
Senator Pratte: No.
Ms. Hogan: The Honourable Senator Sinclair?
Senator Sinclair: No.
Ms. Hogan: Yeas, 4; nays, 6; abstentions, 2.
The Chair: Thank you. The amendment is defeated.
Shall clause 225 carry?
Some Hon. Senators: On division.
The Chair: On division.
Shall clauses 226 to 234 carry?
Some Hon. Senators: On division.
The Chair: I understand we have an amendment for clause 235. The amendment is put forward by Senator Sinclair. You will have it in your stack of amendments. I will identify the number on the page, MS-235.88.
[Translation]
This is the amendment numbered MS-235.88. We are on page 88 of the bill.
[English]
Senator Sinclair, please introduce the amendment.
Senator Sinclair: The amendment reads as follows.
I would move:
That Bill C-75 be amended in clause 235, on page 88, by adding the following after line 11:
“(7) In this section, judge, in the Province of Quebec,
(a) in the case where the order that the accused be detained in custody has been made by a judge of the superior court of criminal jurisdiction in the Province of Quebec, has the same meaning as in paragraph (b) of the definition judge in section 493; and
(b) in any other case, means a judge of the superior court of criminal jurisdiction of the province, a judge of the Court of Quebec or three judges of the Court of Quebec.”.
The Chair: Explanation, senator?
Senator Sinclair: Senator Dalphond will speak to this. He and I have discussed the jurisdictional issue that arises that is unique to Quebec because of the proposed amendment.
[Translation]
Senator Dalphond: Thank you, Senator Sinclair. Essentially, you will remember that, when the minister appeared, I asked him that question. Judges from the Court of Quebec spoke about the difficulty of getting three judges in order to release someone, or to review a judgment of the Court of Quebec requiring detention, without sending it to the Superior Court. They asked for an amendment allowing a single judge to be able to modify or review a detention order.
After that, the minister indicated that he would get back to us quickly on it, and the government response is the one that Senator Sinclair read.
The difficulty here is that three judges are needed for provisions other than the review of a detention order. So the drafting is unique in that a single judge is needed to review a decision on detention but, basically, three judges are needed for other provisions of the Criminal Code.
For summary convictions, you go to a Court of Quebec judge.
[English]
Senator Batters: Just so I make sure that I understand this correctly, Senator Sinclair, are you the sponsor of this bill? I can’t recall.
Senator Sinclair: Of the amendment?
Senator Batters: The sponsor of the bill.
Senator Sinclair: I am, yes.
Senator Batters: Did I hear correctly that Senator Dalphond said this was the government’s response, this is a government amendment?
Is that correct?
Senator Sinclair: The discussion occurred with the government, yes.
Senator Batters: The government is supportive of this?
Senator Sinclair: I believe so, yes.
Senator Batters: Did they draft it?
Senator Sinclair: No. We did, with the law clerk.
Senator Batters: But they have indicated that if this bill is passed with that particular amendment, they would be supportive and accept it?
Senator Sinclair: It’s confirmed in the minister’s letter. I was just trying to find the section in the letter. There’s an acknowledgment of the unique issues that arise in Quebec — my apologies for not having it at hand. I have the letter.
[Translation]
The Chair: Ms. Morency, perhaps?
[English]
Or maybe Ms. Davis-Ermuth or any other person from the Department of Justice?
Senator Batters: It would be helpful if we could have someone from the Department of Justice come up.
Senator Dalphond: It was in the questions and answers I had when he testified.
The Chair: Ms. Davis-Ermuth, you heard the question raised by Senator Batters?
Ms. Davis-Ermuth: The department is uncertain at the moment which letter is being referred to. Is this the minister’s undertaking letter?
Senator Sinclair: It’s not in the letter.
The Chair: Of course, I read it.
Senator Batters: About this particular amendment —
The Chair: There’s no specific mention of that in the letter of the minister. Maybe Senator Batters could renew her question.
Senator Batters: Yes. If this particular amendment proposed by the sponsor of the bill is adopted, will the government accept it?
Ms. Davis-Ermuth: The government is supportive of this amendment. The government has been in consultation with the Government of Quebec as well as the provincial court judges who would become responsible for this.
Senator Batters: As a Justice lawyer, is the wording of the amendment to your satisfaction?
Ms. Davis-Ermuth: Yes.
Senator Batters: Thank you.
The Chair: I don’t see any other senators, so I will proceed.
[Translation]
Do you want to add anything, Senator Dalphond?
Senator Dalphond: Here is the minister’s answer to my question:
The Myers decision is quite recent. Like you, I am a lawyer from Quebec. The question was raised by our counterparts in Quebec and we are presently considering it. We are aware of the challenges and we are currently assessing the suggestions.
That is what gave rise to the amendment.
[English]
The Chair: Are honourable senators now ready for the question? All those in favour of the amendment as introduced by the Honourable Senator Sinclair please raise your hand.
Senator Batters: On division.
Senator Boisvenu: On division.
The Chair: On division, thank you.
Shall clause 235 carry, as amended?
Some Hon. Senators: On division.
The Chair: Thank you.
Shall clauses 236 to 238 carry?
Some Hon. Senators: On division.
The Chair: On clause 239, I understand that we have an amendment. The amendment is presented by Senator Dalphond, identified by the letters PJD-239.90.
[Translation]
So, we are on the amendment numbered PJD-239.90. We are now on page 90 of the bill. Is everyone still with us?
Senator Dalphond, be so kind as to introduce the amendment.
Senator Dalphond: I will read the amendment.
It is moved:
That Bill C-75 be amended in clause 239
(a) on page 90, by replacing line 28 with the following:
a court composed of a judge and jury. If you elect to be tried by a judge without a jury or by a court composed of a judge and jury or if you are deemed to have elected to be tried by a court composed of a judge and jury, you will have a preliminary inquiry only if you or the prosecutor, or both, request one and that request is authorized by the justice. How do you elect to be tried?; and
(b) On page 91, by adding the following after line 5:
“(4.01) If an accused referred to in subsection (2.1) elects to be tried by a judge without a jury or by a court composed of a judge and jury, if an accused does not elect when put to the election or is deemed under paragraph 565(1)(a) to have elected to be tried by a court composed of a judge and jury court, or if an accused is charged with an offence listed in section 469 that is not punishable by imprisonment for life, the justice shall, on the joint request of the accused and the prosecutor that is made at that time or within the period fixed by the rules of the court made under sections 482 or 482.1 — or if there are no such rules, by the justice — hold a preliminary inquiry into the charge, if the justice is satisfied that appropriate measures have been taken to mitigate the impacts on any witness or likely to provide evidence at the inquiry, including the complainant.
(4.02) If an accused referred to in subsection 2.1 elects to be tried by a judge without a jury or by a court composed of a judge and jury, if an accused is not elect when put to the election or is deemed under paragraph 565(1)(a) to have been to have elected to be tried by a court composed of a judge and jury, or if an accused is charged with an offence listed in section 469 that is not punishable by imprisonment for life, the justice may, subject to section 577, on the request of the accused or the prosecutor that is made at that time or within the period fixed by rules of the court made under sections 482 or 482.1 — or, if there are no such rules, by the justice — hold a preliminary inquiry into the charge, if the justice is satisfied that it is in the best interests of the administration of justice that appropriate measures have been taken to mitigate the impacts on any witness likely to provide evidence at the inquiry, including the complainant.”.
The Chair: Thank you, senator. Do you want to explain that?
Senator Dalphond: My apologies. It is shorter than what Senator McIntyre had to read yesterday, but it is just as technical to a certain extent.
[English]
We heard many witnesses who came before the committee to question the government’s proposal to completely remove preliminary inquiries, except in the case where a person was indicted on a charge punishable by life in imprisonment. That would be the sole case for preliminary inquiries.
The number of preliminary inquiries across Canada has been diminishing over the years. We know that about 3 per cent of cases now have a preliminary inquiry, out of which 13 per cent are related to indictments that could expose the accused to life imprisonment. So still more than 80 per cent are not related to imprisonment for life.
For these cases, many lawyers, bar associations and other groups have appeared before us to stress the need to not completely remove the ability to have a preliminary inquiry. I was especially moved by the brief sent to the committee by the Alberta Crown Attorneys’ Association asking us to keep that option. They said it was useful and Crown attorneys were asking for it to be kept, at least those in the field.
Based on that, I felt we should keep an option to have preliminary inquiries in some cases. I’m also very mindful — and I think Senator Boisvenu properly raised this issue with some of the witnesses — that victims are often exposed to revictimization when they go to trial and that the system sometimes doesn’t address them properly. We then have a preliminary inquiry, another step where they can be victimized once more. Many groups supported the idea of abolishing preliminary inquiries to prevent at least one step of revictimization.
I’m coming to the amendment now. The amendment doesn’t affect the proposal of the government that if you are indicted for accusations that impose you to imprisonment for life, you are entitled to a preliminary inquiry if you ask for one.
The other case is if the Crown and the accused agree to have a preliminary inquiry then the judge shall order one, but only if the justice is satisfied that appropriate measures have been taken to mitigate the impacts on any witness likely to provide evidence at the inquiry, including the complainant. That is, the Crown and accused’s attorney will have to speak about measures to mitigate and the judge will have to check that it has been done. There are many ways to facilitate this, such as making sure the victim can appear in a different room and not be exposed to the accused in the same room.
I must also say that Bill C-75 provides more power for judges to manage files and, for example, to limit the time for cross-examination, focus on certain types of issues and ensure the complainant will be treated in a more proper fashion than under the current system.
The third proposal is the same, except when there’s no consent between the Crown and the accused, then one of the parties could ask the judge to grant permission to hold a preliminary inquiry, but only if the judge is satisfied that it is in the best interests of the administration of justice to hold one and that appropriate measures have been taken to mitigate the impacts on any witness, including the complainant.
This restricts access to preliminary inquiries but does not end them. I think this is in line with this committee’s 2017 proposals to restrict access to preliminary inquiries.
[Translation]
Senator Pratte: I support the spirit of this amendment. I found the idea of abolishing preliminary inquiries a little radical, especially since both Crown and defence representatives have told us that they can sometimes be very useful either for the defence or for the Crown. Both sides see some advantage in them. I want to make sure I fully understand, because the language is quite technical. When the two parties agree, do judges have any choice? Are they required to hold a preliminary inquiry?
Senator Dalphond: They must order one. They must also ensure that steps have been taken to protect the complainant and the witnesses.
Senator Pratte: If one party or the other requests a preliminary inquiry, judges can order that one be held if they are convinced that it serves the interest of justice, with due regard also to the interest of the witnesses. I am in favour of that amendment.
[English]
Senator Batters: If I could get the Justice officials to the table about this issue, please. Thank you.
[Translation]
The Chair: Can you please come to the table and identify yourselves? We have to provide the identity of participants for the record.
Ms. Morency, you are also accompanied by Paulette Corriveau. Good morning.
Go ahead and ask your question now, Senator Batters.
[English]
Senator Batters: I’m wondering if the Department of Justice supports this particular amendment of Senator Dalphond, and, if not, why not.
Paulette Corriveau, Counsel, Department of Justice Canada: Thank you for the question. I would like to preface my comments in the context of Bill C-75. The objective of the bill was to narrow the availability of preliminary inquiries to offences punishable by life, which represents 70 offences. The motion, as proposed, would permit preliminary inquiries for all indictable offences from two years to life. We’re increasing by 393 offences.
The potential implication of doing this, combined with the effect of the motion, could increase delays. The proposal in Bill C-75 represents a great deal of consultation over several years, which included work on these types of measures. Bill C-75 represents a balanced approach between the various interests in mind.
Bringing it back to Bill C-75, this is not consistent with the objectives of the bill.
Senator Batters: Was Justice advised of this particular amendment, or is this the first time that you’ve seen it today?
Ms. Corriveau: We received it yesterday.
[Translation]
Senator McIntyre: Senator Dalphond, if I have understood this correctly, three parties play a role: the accused, the prosecution, and the judge. Judges have the last word. Not only must they agree to the request, but they also have to make sure that everything is in order.
[English]
The Chair: Seeing no more senators, I will be calling the vote on the proposed amendment as introduced by the Honourable Senator Dalphond.
All those in favour of the amendment please —
Senator Boisvenu: On division.
Senator Batters: On division.
The Chair: On division. Thank you, honourable senators.
Shall clause 239, as amended, carry?
Some Hon. Senators: On division.
The Chair: On division.
Shall clauses 240 to 277 —
[Translation]
Senator Dalphond: For clause 240, we will have to make identical amendments for Nunavut. The amendments are consequential.
The Chair: Are you asking me to stand clause 240? I have to have the text in front of me.
Senator Dalphond: We have to keep clause 240 back because the text will be identical.
The Chair: My apologies, Senator Dalphond. We are amending the Criminal Code. Certainty is our most golden rule.
[English]
I will stand clause 240 if there are consequential amendments to be made, and I will leave you the opportunity to come back with some adjustments to that clause. That will make sure that what we do is in sync with the proper way of addressing this issue.
[Translation]
Okay. In the meantime, Senator Dalphond, would you do what you need to do so that we can come back to clause 240 later?
Senator Dalphond: Thank you, Mr. Chair.
The Chair: We will stand clause 240.
[English]
Shall clauses 241 to 268 carry?
Hon. Senators: On division.
The Chair: Senator Batters, I understand you have a position to put forward on clause 269 ?
Senator Batters: I do, yes.
Senator Sinclair: Do you have a document?
Senator Batters: It’s not an amendment.
The Chair: There is no document. It’s to delete a section, so it doesn’t need an amendment. I’m sorry, I announced your position.
Senator Batters: Thank you.
Senator Sinclair: What page?
[Translation]
The Chair: It is clause 269, on page 110.
[English]
Senator Batters: I wish to advocate to this committee that, given the substantial and compelling evidence we have heard throughout our study of Bill C-75, we vote against clause 269 of Bill C-75. This would defeat the revised section 633, which gives judges additional powers to stand aside jurors. Defeating that part would also restore peremptory challenges for jurors.
I have practised law in Saskatchewan for 25 years. Saskatchewan has a high percentage of Indigenous people. It is in that context that I have heard significant concerns about this major change to the jury selection process contained in Bill C-75. I have heard those strong concerns from judges, defence counsel and Crown prosecutors. Those concerns have been echoed vociferously by almost every single one of the witnesses we have heard from on this particular issue in our study of Bill C-75.
I note that when I questioned the Minister of Justice about the major concerns on that very issue, Minister Lametti stated:
We have certainly heard those commentaries throughout. The preponderance of evidence in our view goes the other way.
Honourable senators, that is not at all what we have heard at this particular committee in this study of Bill C-75. The vast majority of the evidence we have heard in our study of Bill C-75 was that the jury selection change on stand-asides and eliminating peremptory challenges should not be made. The position of the Canadian Bar Association, thousands of lawyers across Canada, defence and Crown counsel, is to oppose those jury selection changes in Bill C-75.
In the brief the Canadian Bar Association filed regarding that part about the stand-aside section of adding and maintaining public confidence in the administration of justice, they stated:
This is a broad and vague power. . . . There is also no guidance on what specific process a trial judge should follow in making this determination. In essence, it appears that judges would be invited to engage in their own peremptory challenge processes.
In his May 2 testimony, Tony Paisana explained why the CBA opposes those jury selection changes:
Our submissions come from the very first principled basis that you are entitled to a jury of your peers, and “your” means the accused’s peers. As we have heard over and over again throughout these hearings, Indigenous people and other racialized communities are overrepresented in the criminal justice system. The idea that that individual, faced with a jury that does not look like a jury of their peers, could have no meaningful say in the composition of that jury is very problematic for us.
. . . this peremptory challenge process gives such accused an opportunity to shape the jury so that it is more representative of their interests, of their community, of their cultural background and their experience, both in life and in the criminal justice system, to provide for a jury of their peers, not a jury of everyone’s peers.
Regarding removing peremptory challenges causing delays, Mr. Paisana said:
You will see more challenges for cause. They are time consuming. They are very difficult to advance on behalf of the accused, so the results of those challenges will likely be fruitless in many cases.
In addition, you will note from the bill that they have proposed that the judge actually have some form of peremptory challenge themselves in the name of the administration of justice. What we envision, unfortunately, is all sorts of applications by accused persons to force the hand of the judge to exercise that power, resulting in voir dires or appeals where the judge refuses to do so and more delay, more applications where we already have a system where this sort of thing unfolds quite quickly.
On May 2, Annamaria Enenajor expressed the position of the Criminal Lawyers’ Association opposing the government’s changes as follows:
There is a very limited mechanism for criminal defence lawyers where their client is an Indigenous or a racialized person. There is really no mechanism by which we can ensure that there is representativeness from their community on the jury. The peremptory challenges have been the only tool available for us to do that, to get to the only one, two or three members of the jury pool who might be of Indigenous or racialized background such that our client has members from their community on the jury.
Also on May 2, William Trudell expressed the position of the Canadian Council of Criminal Defence Lawyers, again opposing the government’s changes and stating:
. . . about the effect of getting rid of peremptory challenges . . . . it’s going to increase the time it takes to choose juries and invites this bill to give more power, if I might say, to the judge. The judge should not have more power in the selection of juries.
On May 9, lawyer Michael Johnston provided this important context about the 2013 Iacobucci report, which had been cited by the government to support their changes to the juror selection process. On that particular one, Mr. Johnston stated:
You don’t throw the baby out with the bathwater. Can’t we find some way to preserve the benefits and mitigate the damages? That is exactly why I would respectfully submit that the Honourable Frank Iacobucci, when he studied this matter in 2013 of First Nations representations on Ontario juries, did not recommend their eradication with the greatest of respect.
There, he was speaking of the eradication of peremptory challenges.
Mr. Johnston pointed out that the former Justice Iacobucci recommended:
. . . to the Attorney General of Canada an amendment to the Criminal Code that would prevent the use of peremptory challenges to discriminate against First Nations people serving on juries. He then goes on to reference the U.S. practice which is what is called a Batson challenge.
Then, as well, this important element, the U.S. procedure called the Batson challenge, is not included in the government’s Bill C-75 changes.
Further, the same lawyer, Michael Johnston, provided our committee with some key context about the 1991 Manitoba report written by now Senator Sinclair. On that one, Mr. Johnston stated:
. . . I want to draw to the Senate Committee’s attention that the report has to be understood contextually. That was written in 1991 when the Crown still had the power to stand by jurors. The Crown had the power to stand by 48 jurors in 1991 and have four peremptory challenges.
Obviously, the senator can and very ably does explain his own conclusions from his 1991 report, but I think it’s helpful to have this context about both the 1991 Sinclair report and the 2013 Iacobucci report.
Mr. Johnston also brought to our attention that Senator Sinclair had recommended a major overhaul of the challenge for cause procedure, and that would also need to occur if peremptory challenges were eliminated. That major overhaul of the challenge for cause situation has not happened in Bill C-75.
Then, honourable senators, one of our last Bill C-75 witnesses was noted a defence counsel from Saskatchewan, Brian Pfefferle. He has conducted many jury trials in Saskatchewan on an ongoing basis, including representing a significant number of Indigenous accused in jury trials. He has frequently seen how peremptory challenges work in actual practice when representing Indigenous accused, and here is what he told us:
. . . it is extremely difficult to obtain Indigenous jurors on our juries because of a number of factors, but peremptory challenges are not a cause in my experience. In fact the opposite is true. I use peremptory challenges for the purposes of obtaining Indigenous jurors on my juries.
. . . there’s the issue of when the clerk asks the juror to look at the accused and the accused to look at the juror. That experience is one that you cannot really describe. It’s not an experience of racial profiling or anything of the like in my experience. If the juror won’t even look at my client, I don’t want them on my jury. Can I prove bias? No, I can’t. To an Indigenous person sitting on that jury and particularly standing in front of this grand crowd can be an intimidating experience.
Regarding removing peremptory challenges, Mr. Pfefferle said:
It’s going to lead to significant, expensive delays in our jury trial process, again with Indigenous people being overrepresented in that process while underrepresented on juries.
He stated:
Rarely are we challenging a juror simply because of the way they look, but on occasion we are challenging them when they glare at our clients or give a look. We’re counsel, and human beings can identify those people who aren’t going to be fair.
I think it’s important to also note this from the Canadian Bar Association’s brief.
They said:
Bill C-75 was introduced less than two months after the Stanley verdict. Some amendments to the jury process, including abolishing peremptory challenges, seem insufficiently considered. If legislative reform is required, it should be based on empirical data generated through a thorough examination of the jury system. The CBA Section recommends that the government undertake further study before making any major legislative amendments to the jury process.
It is for all those substantial and compelling reasons, senators, that I propose section 269 of Bill C-75 be defeated.
The Chair: Thank you, senator.
[Translation]
Senator Dalphond: I will speak after Senator Sinclair.
I have just one question for Senator Batters.
[English]
If we adopt this amendment, are there other provisions of the bill that have to be amended?
Senator Batters: No, it’s not an amendment. I am proposing we have a vote; I am proposing we vote against this. We defeat it.
Senator Dalphond: Are there provisions that have to be revisited or deleted?
Senator Batters: I did check that with the law clerk on a few different occasions and they told me, “no.” Of course, if there is anything they have missed potentially, then we would have the opportunity to be able to clean that up later with the general powers given to steering.
Senator Sinclair: The issue of peremptory challenge has been one that I studied for years, going back to 1990 when the Aboriginal Justice Inquiry of Manitoba looked at this question. We made a very clear recommendation that peremptory challenges be eliminated from the code.
The issue of challenges for cause remaining was raised and was part of the recommendation that we made at that time as well. That view was acknowledged and accepted by Justice Iacobucci in his report on Aboriginal people and the justice system, and the jury selection in Ontario as well. He referenced the AJI report extensively in his report, and specifically acknowledged the issue of peremptory challenges being an issue that needed to be addressed and endorsed our recommendation.
But let’s look at this thing from a rational perspective. The important thing to keep in mind is that peremptory challenges historically have been used and are being used in a discriminatory fashion. That’s what the research has shown. We documented a number of instances, and Justice Iacobucci also documented instances in his report, where individuals were being selectively removed from the jury panel process by defence counsel because they were Indigenous, for no other reason that appeared, either on the record or because the individual couldn’t justify speaking about it.
The Batson test referred to is an American test which says that if the lawyer is selectively removing people in a manner that appears to be discriminatory, then the judge can challenge him to justify his or her removal of certain people from the jury panel. The Batson test has been shown to be ineffective as a means by which to deal with the issue of challenges for cause and peremptory challenges.
England and other nations within the British Commonwealth have removed peremptory challenges entirely going back to 1988, and it has not been shown to have been a problem. The situation is that you effectively take the people who come out of the selection box that is used in most courts, and the names that are drawn are the names that you are able to work with. The ability to question jurors and get more information about them has been increased as a result of that, and there has been greater care taken in terms of how the jury panels themselves and the pool of potential jurors is created.
That has proven to be a problem, particularly in the prairie provinces where remote communities are difficult to get access to and from. Therefore, when people are called to a jury which only sits in large, urban environments, they have difficulty getting down in time to do the trial or they have to pay for their own expenses. There is no mechanism by which they can attend. So they often ask to be relieved and are often granted permission. That also results in a jury pool that is not representative of the community.
All of this speaks to the fact that peremptory challenges have been used discriminatorily and that the discrimination occurs not just because of the actions of individuals but also because of the way the system works. Removing peremptory challenges is a better way for the system to start addressing the areas of change that need to be addressed, which is how do we create jury pools to begin with?
I was intrigued to hear some of the representations from witnesses — one in particular — who said that he uses the peremptory challenge process to eliminate non-Aboriginal people from the jury so that he can get a representative jury. If you think about it, that really is a person saying, “Allow me to continue to discriminate, but let me discriminate the other way.” That’s no justification. In fact, that’s an acknowledgment that the process of peremptory challenges is used to discriminate. The important thing to remember is that the jury selection process is supposed to be fair and is supposed to result in a jury that is representative of the community where the offence occurred and where the accused comes from. That has not been and is not the case. It has not been the case for generations in Canada.
Early jury systems that were imposed in Western Canada at the time of Confederation were, in fact, individuals who were often selected by the Crown prosecutor from communities in the East and allowed to sit on jury panels in the West. The history of the administration of justice in the West shows that it was relatively recently that individuals were allowed to sit on jury panels who actually were resident in the area. At no point in time were what were called Indian people at the time allowed to sit on juries. That process of discrimination continues.
I have been an advocate for removing peremptory challenges. I think it results in injustice to continue to allow lawyers to discriminate by removing Indigenous people. I know of no situation where the use of peremptory challenges has resulted in a balanced jury. Individuals who say that they can and want to continue to use them to have Indigenous people placed on the jury are not representative of what is actually going on out there. What is going on out there is that lawyers are using the peremptory challenges to discriminate against Indigenous people, and we have seen it all the time. We pointed to a number of cases that we researched in the AJI back in 1990, and that research has been supported by the experience.
So I speak against this motion. I don’t think we should defeat the amendment. In fact, I think the amendment should be allowed to continue.
[Translation]
Senator Dalphond: Senator Batters referred to the Batson test, which was developed by the Supreme Court of the United States in 1986. In the United States, it is recognized that discrimination in jury selection continues to be a reality despite the Batson test. For example, a 2012 study by Michigan State University revealed that, over a 20-year period in North Carolina, prosecutors in death penalty cases challenged black jurors two and a half times more frequently than jurors who were not black. The measure has also been associated with justice being further delayed.
In reality, the Batson test is ineffective; the only solution is to prohibit arbitrary challenges, as England has done.
In the Batson decision at the Supreme Court of the United States, Justice Thurgood Marshall, a celebrated American jurist, stated the following in concurrence. I quote:
[English]
Only by banning peremptories entirely can such discrimination be ended.
[Translation]
That is what the government is proposing today. So I support that proposal.
[English]
Senator Batters: Thanks very much. I have a few comments on that.
First of all, regarding the Batson test, I raised it because that was the condition that former Justice Iacobucci used in his 2013 report. It’s always important to remember, when we are considering this issue, that Canada’s system of jury selection is considerably different from the U.S. I think many Canadians look at these types of issues and, influenced by television and movies from the U.S., think that we have a lengthy and complex jury selection process in Canada. Generally, it is not. It’s actually quite quick and efficient. That’s how it’s viewed by a number of the lawyers who use it. Eliminating peremptory jury challenges would take that part out and, instead, leave it to a complex, expensive delaying process of challenge for cause.
The substantial and compelling evidence that we heard at our committee throughout the study, as I said, almost exclusively, was that counsel who represent Indigenous and other racialized accused on a frequent basis in jury trials in Canada view peremptory challenges as a very helpful tool to help their Indigenous and other racialized clients.
I point to one more quote from Brian Pfefferle again, defence counsel in Saskatchewan who represented many Indigenous accused on an ongoing basis in jury trials. He said:
My experience anecdotally is certainly that peremptory challenges are valuable in creating diversity. As an example, I ended up running the jury trial in The Battlefords following the Gerald Stanley trial. I represented an Indigenous male who resided 600 kilometres away from the community where he was being tried. We used three straight peremptory challenges so that we could obtain what we viewed as a visibly Indigenous person on our jury. The accused was ultimately acquitted of his homicide charges.
Certainly Mr. Pfefferle and many other defence counsel who testified about this particular issue do not view this as discriminatory practice. I don’t think that’s even what the government would contend. Instead, it was clearly stated that they are trying to help their accused actually get a jury of their peers.
Regardless of all of this, what is really clear by everything that we have studied in this particular matter is that more study is required before making such an extreme and major change to our jury selection process in Canada. Also, proper consultation was not done by the government prior to putting this particular major change to the Criminal Code only 48 days after the Gerald Stanley verdict came down.
For those reasons, I ask my colleagues to consider this and the significant effect that it could have on the community that perhaps the government is actually trying to help here. Thank you.
The Chair: Thank you. Seeing no more senators on my list, I will call the vote on clause 269.
Senator Batters: Recorded vote, please.
The Chair: Certainly. All those in favour of clause 269 please express your vote.
[Translation]
Ms. Hogan: The Honourable Senator Joyal, P.C.?
Senator Joyal: Yes.
Ms. Hogan: The Honourable Senator Batters?
Senator Batters: No.
Ms. Hogan: The Honourable Senator Boisvenu?
Senator Boisvenu: No.
The Chair: We are voting to keep clause 269 as it is in the bill.
Ms. Hogan: The Honourable Senator Dalphond?
Senator Dalphond: Yes.
[English]
Senator Sinclair: Are we voting on the motion?
The Chair: No. We are voting on the clause, to maintain 269 as is in the bill.
[Translation]
Ms. Hogan: The Honourable Senator Dupuis?
Senator Dupuis: Yes.
Ms. Hogan: The Honourable Senator Dyck?
Senator Dyck: Yes.
Ms. Hogan: The Honourable Senator Gold?
Senator Gold: Yes.
Ms. Hogan: The Honourable Senator Housakos?
Senator Housakos: No.
Ms. Hogan: The Honourable Senator McIntyre?
Senator McIntyre: No.
Ms. Hogan: The Honourable Senator Miville-Dechêne?
Senator Miville-Dechêne: Yes.
Ms. Hogan: The Honourable Senator Pratte?
Senator Pratte: Yes.
Ms. Hogan: The Honourable Senator Sinclair?
Senator Sinclair: Yes.
Ms. Hogan: Yeas: 8; nays: 4.
[English]
The Chair: The clause is carried.
Shall clauses 270 to 277 carry?
Senator Boisvenu: On division.
The Chair: I think we have an amendment on clause 278. The amendment is under the number code MS-278.113.
[Translation]
It’s amendment MS-278.113. We’re on page 113, clause 278.
[English]
I understand, Senator Sinclair, that you are the sponsor of that amendment.
Senator Sinclair: Let me find the provision in the bill so I can speak to it. I’ll read this out in just a moment. This is page 113.
The proposed amendment to the bill would be:
That Bill C-75 be amended in clause 278, on page 113, by replacing lines 9 and 10 with the following:
“261 or 462.37, subsection 491.1(2), 730(1) or 737(2.1) or (3) or section 738, 739, 742.1, 742.3, 743.6, 745.4”.
Let me see if I can figure out why we are doing this.
The Chair: I could offer you an explanation, but I’m not the sponsor. I have checked that amendment before, but I’ll let you do it.
Senator Sinclair: You’ll let me struggle with it, okay. I appreciate the support.
Senator Dalphond: I think there was an error in there.
Senator Sinclair: I think this is a correction. We had a discussion about this. I think the departmental officials may have had some input into this.
The Chair: Mr. Villetorte, would you come to the table, please?
Matthias Villetorte, Senior Counsel and Team Lead, Department of Justice Canada: There are a lot of clauses. This one is a consequential amendment that must be read with the main motion to amend the victim surcharge, which is titled MS-301.126. That reflects the proposed renumbering of it.
Obviously, this is the definition of “sentence” that is being amended in section 673(b) of the Criminal Code that applies where a victim surcharge is imposed on indictment. A similar clause is also being amended in motion MS-314.134. That is essentially the same, where a victim surcharge is imposed on summary conviction. It relates to the renumbering of the main motion on victim surcharge.
The Chair: Pretty technical.
Senator Sinclair: I knew there was a reason I was doing this.
Senator Batters: I’m assuming from that exchange that this is a government amendment?
Mr. Villetorte: Yes, it is.
Senator Batters: Thank you.
The Chair: Seeing no other senators, I’ll call the vote on the amendment as introduced by Senator Sinclair.
All those in favour, please raise your hand.
Senator Batters: On division.
The Chair: On division.
Shall clause 278, as amended, carry?
Some Hon. Senators: Agreed.
Senator Batters: On division.
The Chair: Shall clauses 279 to 291 carry?
Senator Batters: On division.
The Chair: For clause 292, I understand we have an amendment. It’s the amendment under code number LD-292.123. We are on page 123 of the act, for senators to follow.
Senator Dyck: Thank you. I move:
That Bill C-75 be amended on page 123 by adding the following after line 5:
“292.1 The Act is amended by adding the following after section 718.03:
718.04 When a court imposes a sentence for an offence that involved the abuse of an intimate partner — and, in particular, a partner who is vulnerable on the basis of sex or is an Indigenous person — the court shall give primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence.”.
The Chair: Explanation, senator?
Senator Dyck: Going from the witness testimony, I will quote Commissioner Buller:
These changes must be made, especially on sentencing and on charging but primarily on sentencing, of course, to address denunciations and deterrence and to uphold the value of lives.
She continued:
We, as a nation, have already done this by expressly stating in the Criminal Code that denunciation and deterrence are primary considerations on sentencing, when there are children involved, where the complainants are members of the police or the judicial system, and, might I add, where the victim is law enforcement, or military, or service dogs. Certainly Indigenous women, girls, and members of the 2SLGBTQQIA communities deserve the same protection, if not more, I propose, than law enforcement, military and service dogs, Mr. Chair and senators.
And Katherine Hensel from the Indigenous Bar Association said:
I note you will be hearing from Jonathan Rudin from Aboriginal Legal Services. We endorse and adopt his submissions with respect to the amendments as well as the comments of Commissioner Buller yesterday.
With regard to the explanation, this amendment will come under section 718 of the Criminal Code, which deals with purposes and principles of sentencing. Existing there now is 718.01 to 718.03. These are the sections reflected by Commissioner Buller’s comments above that deal with the circumstances where the Criminal Code places a primary consideration of denunciation and deterrence in relation to offences committed against certain victim groups. This amendment would include a fourth consideration under the section to include the offences against an intimate partner, where the victim is more vulnerable based on sex or is an Indigenous person.
Currently, under 718.01, there are offences against children. 718.02 is an offence against a police officer or other justice system participant. 718.03 is an offence against certain animals. So 718.04 would add the consideration for persons vulnerable on the basis of sex or an Indigenous person.
Senator Batters: Maybe it’s what you just spoke about, Senator Dyck, but were you saying that one of the other subsections of this particular part applies to children? I was wondering if, from your amendment, it would be correct that the amendment would not apply if the victim in question is a child who is not Indigenous. Did you say another subsection covered children?
Senator Dyck: Sorry, you’re asking about age, essentially?
Senator Batters: Are children anywhere else in this particular part considered to be vulnerable or not?
Senator Dyck: Children are covered under section 718.01. They’re already under that section of the Criminal Code.
Senator Batters: That’s what I was asking about. Could I get the Justice officials to come to the table and provide us with their view on this particular amendment?
The Chair: Mr. Villetorte, you heard the question from Senator Batters?
Mr. Villetorte: No.
The Chair: Could you repeat the question, Senator Batters?
Senator Batters: I’m wondering what the position of the Department of Justice is on this particular amendment.
Mr. Villetorte: As was just mentioned by Senator Dyck, there currently exists three sections — 718.01, 718.02 and 718.03 — that provide similar guidance to sentencing courts to prioritize two of the sentencing objectives that we find in 718, denunciation and deterrence over others that are there, including reparation of the harm done and rehabilitation.
In terms of comments, what I can put forward to this committee is that, in essence, it’s a direction to sentencing courts to treat this more seriously, and obviously for sentences imposed to reflect the gravity of what the crime is. Now, I’ve heard some exchanges to say how this would work with the Gladue principle in 718.2(e) currently being a sentencing principle of the Criminal Code under the same part.
I’m not taking a position in terms of whether it’s contradicting or balancing. What I’m saying is I wonder how it’s going to work at sentencing, especially considering the directive of the Supreme Court of Canada in R. v. Gladue in 1999 and reaffirmed in Ipeelee in 2012, one of them being that this section was interpreted to ameliorate the serious problem of over-representation of Indigenous people in prisons and to encourage sentencing judges to have recourse to restorative justice approaches.
On the one hand, you have to treat those offences committed against Indigenous persons, you have to give paramount consideration to denunciation and deterrence. But when the offender is also Indigenous, that’s where it’s unclear how it will operate with the Gladue principle currently —
Senator Batters: Because of that, then, I’m wondering what the position of the Department of Justice is. If this amendment were to pass, because of the potential contradiction with the Gladue principle, would the department and the minister accept this particular amendment or would they not accept it?
Mr. Villetorte: What I can say is in terms of the sentencing process, this would not impede a sentencing judge from imposing a sentence that is proportionate in the circumstances. This is one of the elements that a sentencing judge will have to take into account in imposing a just sentence.
Senator Batters: Are you saying, then, that you’re not sure, or are you saying that this is something yet to be determined? What is the position of the department on this? Or is this something you’re not sure of because you just found out about this amendment today?
Mr. Villetorte: I would say at this point that I can’t say supporting or not. All I’m saying is that it’s very uncertain, and I think it may be premature. The section is focused on intimate partner violence cases and not on other cases of violence committed against a victim who is vulnerable on the basis of sex or an Indigenous person. I say “premature” because we heard, as you said, from Commissioner Buller that maybe the report on missing and murdered Indigenous women and girls might provide more guidance in terms of the scope of what such an amendment would be. It’s restricted in this sense.
There are other considerations that would also have to be put forward.
Senator Batters: But the government likely won’t have the report before they have to come forward with deciding whether to accept this.
Mr. Villetorte: That’s correct.
Senator Batters: Is June 3 when the report comes out? Will the government wait for that before making the determination whether to accept this amendment?
Mr. Villetorte: I think that’s a reasonable suggestion.
Senator Batters: Thank you.
Senator Pratte: Besides the Gladue factors, the interaction of the amendment proposed with other factors the court has to take into consideration, notably the fact that there’s evidence that the offence was moderated by bias or prejudice based on race, for instance, and evidence that the offenders abused the offender’s spouse or common-law partner — which touches a little bit on what Senator Dyck is trying to do — is there any redundancy, or does it just add importance to these factors?
Mr. Villetorte: You’re quite right to point to the current aggravating factors in 718.2. It goes in the same sentence. It sends a signal that these have to be taken to account more seriously. On one hand, it’s the objective of what the sentence must accomplish. On the other hand, when you’re talking about aggravating factors, it clearly says in 718.2 that, where there’s evidence those situations occur, a sentence should be increased to account for those circumstances. So, yes, in essence, it goes in the same direction.
To come back to Senator Batters’ question, I want to be clear that I don’t know if the government will support it. I’m not in a position to say.
Senator Dyck: I will add to the comments with respect to the interaction with Gladue, I would go back to Commissioner Buller’s comments. I was going to bring this up later, because there are three amendments on the same issue. She said:
Having an amendment to 718.2 to include indigeneity as an aggravating factor to address deterrence and denunciation doesn’t necessarily outweigh or negate the Gladue principles as they apply to the accused.
She also said, with respect to the Gladue principles, “I’m hearing this in these hearings and elsewhere. . .” “these hearings” meaning the inquiry hearings —
. . . as a bit of a misunderstanding of what a sentencing judge does, because sentencing requires delicate balancing, and in some cases, depending on the totality of the circumstances — the offence, the offender, the complaint, the community — it may very well be that the balance shifts one way in one case but shifts the other way in another.
Commissioner Robinson said that she thought adding an aggravating factor for Indigenous women was an important thing to add:
. . . in crafting appropriate sentencing, all these factors have to be on the table. What is also a huge issue when it comes to Gladue-type considerations is the infrastructure within the communities to make sentencing meaningful. That needs to be part of the consideration as well.
I think they were trying to say that we also need to take into account the aggravating factors for the victim not just for the offender, as it is now recognized in the Criminal Code under paragraph 718.2(e).
There was a reference in Minister Lametti’s letter to us to a report that was written by Professor Isabel Grant. In her later report in 2018, she very clearly says that this particular clause in the Criminal Code, paragraph 718.2(a)(ii), is actually, in practice, overwritten by the Gladue effect. Therefore, it’s unfair to all victims of intimate partner violence; that having the Gladue provision there essentially negates this whole clause as it is now, without any amendments.
Therefore, it’s critically important to include additional measures to ensure that does not continue to happen, because it would disadvantage anyone who is a victim of intimate partner violence.
Senator Sinclair: I have decided this is an amendment that I’m prepared to support, and I encourage our colleagues to do so.
The question that arises and has been raised, particularly with regard to this particular amendment as well as the bill that the Senate adopted that Senator Dyck introduced that went to the house and never made it out, is that it flies against the Gladue principle.
I want to speak about that for a minute, because I want to ease everybody’s mind. It doesn’t, really. The Gladue principles are what the Gladue principles are. The Gladue principles say that in sentencing an Indigenous accused, the court shall take into account the unique circumstances of the Indigenous offender. This does not change that. This does not tell the court not to take those unique circumstances into account. It requires the court to consider what those unique circumstances are, both in terms of the generic community as well as the individual. So the court will continue to do that.
The court has done that, even in the face of the aggravating factors section, which has been in existence long before the Gladue principles were put into paragraph 718.2(e). When the court has to consider the case of abuse of a child, the Gladue principles still apply. In considering the issue of deterrence and denunciation, the court still has to avert to the unique circumstances of Indigenous offenders.
I don’t see why putting in a provision like this, which is a reflection of the current circumstances of this day, where domestic violence is so very clearly an issue, that we would hesitate because we see it as somehow contradicting a provision, which it does not. It merely puts that provision, 718.2(e), which refers to what are called the Gladue principles, into a situation where it must then also balance the fact that the victim is an intimate partner, particularly in circumstances where gender is an issue and if they are Indigenous themselves.
I don’t want people to be deterred from supporting this amendment merely because they think it contradicts the Gladue principles, because it doesn’t. Judges have been doing that balancing provision since paragraph 718.2(e) was brought in. They haven’t been doing it well, but the Supreme Court has given direction in a number of cases on how to do it. This particular provision will give them other factors they will also have to take into account in doing that balancing test. It’s important to keep that in mind.
I also want to point out that when you read this without reference to the issue of gender and indigeneity, the proposed amendment that Senator Dyck brings to us says:
718.04 When a court imposes a sentence for an offence that involved the abuse of an intimate partner . . . the court shall give primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence.
So this is not limited only to female victims or victims based upon gender, and their indigeneity. It applies to all victims of intimate violence.
We have to keep in mind that this particular provision is intended to highlight the fact that in those cases involving violence against intimate partners, the court should consider the objectives of denunciation and deterrence as a primary consideration. Thank you.
Senator Batters: I just wanted to see if perhaps our Department of Justice lawyer had additional commentary to provide to us on this Gladue interplay because, despite what was just stated, I didn’t have the impression that it was as clear cut of a situation as both Senator Sinclair and Senator Dyck just indicated. When I was asking about it earlier, it sounded like there was a lot in flux in the decision making of the Department of Justice on this particular issue.
If you have any additional clarity to offer on that, that would be helpful.
Mr. Villetorte: Gladue is clear. It’s not a direction to impose a lighter sentence. Sentencing is a highly individualized process.
I think, as Senator Sinclair very eloquently said, one of the things that the Supreme Court said in Gladue and reiterated in Ipeelee is that the purpose of 718.2 is to recognize that sentencing of Indigenous offenders must be done differently because of the unique background and systematic factors that may play a role in having brought the offender before the court.
There is this indication from the Supreme Court to favour at sentencing particular procedures and sanctions that are more appropriate given the Indigenous offender’s heritage and connection. Failure to apply the Gladue factor in 718.2(e), as the Supreme Court said in 2012 in Ipeelee, would not be consistent with the fundamental principle of sentencing. That may be another thing that I can add to what we have heard.
I have some comments that are more technical and clerical to the motion when the chair is ready.
Senator Batters: Yes, if you’re okay with that.
The Chair: Could you make those technical comments now? Senator Batters doesn’t seem to have other questions in relation to the main amendment.
Senator Batters: No.
Mr. Villetorte: The first one I would bring the committee’s attention to, the motion and the line in English that starts before the amendment itself:
That Bill C-75 be amended on page 123 by adding the following after line 5:
My comment is on the French version.
[Translation]
That Bill C-75 be amended on page 123 by adding the following after line 5 . . .
I think it’s after line 4 in French.
[English]
The Chair: You’re right, because in English, line 5 starts with “ing,” while in French, of course, there’s no mention. So it would be line 4, yes.
Mr. Villetorte: The second comment I have is that the English version of the text of the amendment uses the term “Indigenous.” Throughout the Criminal Code, “Indigenous” is not used. It’s “Aboriginal” that is used in English. The French keeps the same terminology.
I am just bringing the consistency throughout the Criminal Code to the attention of the committee.
The Chair: Just a second. Do honourable senators understand the suggestions of Mr. Villetorte for adjustment? I understand it is yes.
Senator Dyck: The only comment I wish to make was with regard to your last comment about “Indigenous” versus “Aboriginal.” We were advised by the law clerk that because the department is moving towards replacing the word “Aboriginal” with “Indigenous,” and because this clause is far removed from 718.02(e), that they would start using the word “Indigenous.” That’s why we chose “Indigenous.”
The Chair: Any comment, Mr. Villetorte?
Mr. Villetorte: I have one last comment, and this is from hearing the discussions on this clause. I want to come back to a comment I made earlier.
If the intent here is to capture any violent offences committed against a person, an individual who is vulnerable on the basis of sex or an Indigenous person, I want to reiterate that this would be limited to instances involving intimate partner violence. The equivalent 718.01 provision is any offence committed against a child.
The Chair: Absolutely. That’s a point that has been made around the discussion by Senator Dyck herself.
That provision applies only when the offence involves the abuse of an intimate partner. It is essentially in the context of an offence on the basis of intimate partnership, if I can express it that way. I think it is well understood, but thank you for having made it.
In order to make sure that we are in sync with the proper wording, could I have concurrence to make sure that on the French version —
[Translation]
Do you agree that the words “après la ligne 5” can be changed to “après la ligne 4”?
Hon. Senators: Agreed.
The Chair: Thank you, senators.
[English]
The Chair: On the comments made by Mr. Villetorte on the fact that the same section used the word “Aboriginal” in section 718.2(e):
(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.
I need some direction from the committee on this so that we agree with the consistency that is one principle of the code.
[Translation]
Senator Dupuis: I think looking beyond our horizon is not a bad idea in itself. However, more specifically in this case, the reference — not only in the Criminal Code, but elsewhere in federal legislation — is clear on the use of the word “autochtone” in French and the word “Aboriginal” in English, as it appears in the Constitution, particularly in section 35. It is a well-established concept of law that provides both specific rights for individuals and collective rights for communities. I think this all ensures harmonization with existing legislation, including the Criminal Code. In my opinion, a new legal concept should not be introduced at this time, since such a concept is likely to be challenged to determine who it covers and protects.
So I think that we should use “Aboriginal” in the English version.
[English]
The Chair: Senator Dyck, you are the sponsor of the bill.
Senator Dyck: I have no objection to changing it to “Aboriginal.” That was my original thinking, but we were convinced by the law clerk to try “Indigenous.”
The Chair: I think the compelling argument is that in the same section, the word “Aboriginal” is being used. It seems to me to be a matter of consistency.
[Translation]
Senator Gold: I support the decision. It is quite simple.
[English]
The Chair: Senator Batters, on that same point?
Senator Batters: Yes, I was just wanting to know out of this whole 300-and-some-page bill we have in front of us, Bill C-75, whether there were any other instances of “Indigenous” or “Aboriginal” being used.
The Chair: Maybe your question should be answered by Mr. Villetorte. I could offer you an opinion, but I don’t want to. I’m not testifying today.
Mr. Villetorte?
Mr. Villetorte: Not to my knowledge. I couldn’t say 100 per cent, but I’m pretty sure we kept on —
The Chair: If you want to go to the clause 210 of the bill.
Mr. Villetorte: I have it in front of me. This is the direction at bail given to justice or a judge in deciding the bail to give particular attention to circumstances of, and I quote in English, “Aboriginal accused.”
Senator Batters: The same bill should have the same words.
The Chair: I was going to offer that information.
Are honourable senators agreed that the word “Indigenous” should be replaced by the word “Aboriginal” in the English version?
Hon. Senators: Agreed.
The Chair: Agreed.
Senator Dalphond: Clause 493.2 of the bill.
[Translation]
The Chair: Yes, absolutely.
[English]
Are honourable senators ready for the question? All those in support of the amendment as introduced by Senator Dyck, please raise your hand.
Senator Batters: On division.
The Chair: On division, thank you. Agreed.
Senator Sinclair: Can I ask for a recorded vote, please.
[Translation]
The Chair: We’ll have a recorded vote, please.
Ms. Hogan: The Honourable Senator Joyal, P.C.?
Senator Joyal: Yes.
Ms. Hogan: The Honourable Senator Batters?
Senator Batters: Yes.
Ms. Hogan: The Honourable Senator Boisvenu?
Senator Boisvenu: Yes.
Ms. Hogan: The Honourable Senator Dalphond?
Senator Dalphond: Yes.
Ms. Hogan: The Honourable Senator Dupuis?
Senator Dupuis: Yes.
Ms. Hogan: The Honourable Senator Dyck?
Senator Dyck: Yes.
Ms. Hogan: The Honourable Senator Gold?
Senator Gold: Yes.
Ms. Hogan: The Honourable Senator Housakos?
Senator Housakos: Yes.
Ms. Hogan: The Honourable Senator McIntyre?
Senator McIntyre: Yes.
Ms. Hogan: The Honourable Senator Miville-Dechêne?
Senator Miville-Dechêne: Yes.
Ms. Hogan: The Honourable Senator Pratte?
Senator Pratte: Yes.
Ms. Hogan: The Honourable Senator Sinclair?
Senator Sinclair: Yes.
Ms. Hogan: Yeas, 12; nays, 0; abstentions, 0.
[English]
The Chair: So the amendment is carried.
Shall clause 292 carry?
Senator Batters: On division.
The Chair: On division.
I understand there are amendments to clause 293 from Senator Dyck. Would you introduce your amendment? It is identified as LD-293.123a.
[Translation]
It’s number LD-293.123a.
[English]
Senator Dyck: I move:
That Bill C-75 be amended in clause 293, on page 123, by replacing line 9 with the following:
“offence, abused the offender’s intimate partner or a member of the offender’s family,”.
The Chair: Do you have an explanation, senator?
Senator Dyck: Yes. From the witness testimony of Commissioner Buller, she said:
Returning now to intimate partner violence, the definition of “intimate partner violence” does not include familial violence. We’ve heard testimony from all across Canada about intergenerational violence and violence between family members, who all live under the same roof. Much of this can be traced back to residential schools and the impacts of colonialism, but this familial violence is just as traumatic to the victims and complainants as intimate partner violence.
And Ms. Hensel from the Indigenous Bar Association said:
Given the experience of Indigenous peoples, the legacy of residential schools and the conditions in many of our families and communities, inter-family and intra-family violence is an acute consideration.
Also, if we were to look at the letter that was sent to the committee from the minister a few weeks ago, on page 3 of Annex 1 to his letter it says:
Of the 933 intimate partner homicides between 2007 and 2017, almost two thirds (62%) were preceded by a history of family violence.
With regard to the explanation of the amendment, Bill C-75 only clarifies who intimate partners are in clause 3 and does not include a definition of “intimate partner violence.”
As such, there is no definition to broaden in Bill C-75, but it was suggested by the law clerk that we would capture the familial abuse if it were captured in clause 293 of Bill C-75 that amends the current section 718.2(a)(ii). This would include offences where an offender abuses a family member in conjunction with an offender’s intimate partner.
Senator Sinclair: I have a small concern. I support the concept, I assure you, but I have a small concern because it refers to “a member of the offender’s family.” You might want to think about including a member of the victim’s family, because sometimes they may be an intimate partner but they are not involved in the family. They are not taking care of the family members of the victim.
The reason I mention that is because we are now including members of the family who are over 18 automatically because of the code. Where the victim is under 18, they are caught in the current code, but this amendment would also include victims of families who are over 18.
In this case, I anticipate a situation where the offender would argue that it’s not an aggravating factor because the person is not a member of my family. He is a member of her family. I just draw that to your attention. I’m not sure if we’re capturing everything that you anticipate trying to capture.
You could amend it to say, “a member of the victim’s or the offender’s family.”
Senator Dyck: Right.
Senator Sinclair: That might deal with it.
Senator Dyck: That’s agreeable. We could satisfy that concern just by adding the phrase that you suggested.
Senator Sinclair: I think we might be missing out on otherwise potential victims. Otherwise I certainly support the intention, and I would support the amendment even with that change.
The Chair: We will have to make the adjustment in French. We might look at that.
Senator Dalphond: French is —
The Chair: I will continue the discussion on that point, Senator Sinclair.
[Translation]
I’m sorry, Senator Dalphond, but I can’t understand when you are chatting with Senator Sinclair. If your point is valid, you can share it with your colleagues —
[English]
Senator Dalphond: I was going to say that the French refers to —
[Translation]
— abuse of “either an intimate partner or a family member.” Whose family? It’s quite ambiguous.
The Chair: Exactly. A member of the victim’s or the offender’s family. It should be specified —
[English]
— in the French version to be sure that it covers the concept. The word “family” is not only on the side of the offender, it might also be on the side of the victim.
[Translation]
Are you talking about the point that Senator Sinclair has raised?
Senator Pratte: I’m referring to the amendment.
The Chair: I want to take care of one item at a time.
[English]
Is there an agreement that Senator Dyck takes it upon herself that the words would be: “offence, abused the offender’s intimate partner or a member of the victim or of the offender’s family”?
[Translation]
Senator Gold: Is the term “victim” appropriate in the context of the clause?
The Chair: The reference is to “complainant.”
[English]
On the library point, I’ll point out that we use the word “victim” also in the current bill. Maybe I’ll get the department to answer if you want to be sure that there is absolutely no ambiguity.
Ms. Davis-Ermuth, could you come to the table to make sure we use the right word to maintain the coherence in the act? Do you understand the question?
Ms. Davis-Ermuth: This is the question in terms of proper terminology with respect to “victim” or “complainant”? Because this is at the sentencing stage and the offender has been convicted, the Criminal Code uses the word “victim” at this stage in the principles of sentencing under 718(a) to denounce unlawful conduct and harm done to victims or to the community.
The Chair: So, you had a doubt, Senator Gold, but I already had the answer in the rest of the bill. Thank you.
I will return to the question that I have asked Senator Dyck. Senator Dyck, do you accept changing your proposal to include “of the victim or of the offender’s family”?
Senator Dyck: Yes.
The Chair: Agreed. I will ask the same question for the French version to make sure we maintain the coherence of the section.
[Translation]
What are you suggesting? Do you agree that the French version read as follows: “constitue un mauvais traitement, soit de son partenaire intime, soit d’un membre de la famille de la victime ou du délinquant”?
Ms. Davis-Ermuth: Yes, it’s the same thing.
The Chair: I understand that the term “délinquant” is also used later in the bill.
[English]
I see Ms. Morency and Mr. Villetorte agreeing from the back. Of course, I understand that you agree, Ms. Davis-Ermuth.
Ms. Davis-Ermuth: I do. Although, since I’m at the table, I am wondering if I may ask the indulgence of the chair to voice the department’s possible concerns around the use of the word “family.”
The Chair: That was your question?
Ms. Davis-Ermuth: I could leave it.
The Chair: He will ask you the question.
Senator Pratte: I was wondering whether “family” was defined somewhere.
Ms. Davis-Ermuth: It’s not defined in the code. The department’s concern around this is that in different types of federal legislation where there is an attempt to capture the concept of family, whether it’s in terms of family sponsorship for immigration or things like that, often family is defined very specifically to meet the objectives of the legislation.
An example of when this was done in the Criminal Code is in section 109, which is mandatory weapons prohibition orders. For that particular purpose where they were concerned in the context of intimate partner and family violence and the use of weapons, they added a mandatory weapons prohibition order:
(a.1) an indictable offence in the commission of which violence was used, threatened or attempted against
(i) the person’s current or former intimate partner
(ii) a child or parent of the person or of anyone referred to in subparagraph (i), or
(iii) any person who resides with the person or with anyone referred to in subparagraph (i) or (ii),
The purpose of including people who resided together in this particular paragraph was because we were talking about having a firearm in the same home. In some instances there might be concerns about whether that was really a family member and the protection was needed. Because it involved living in the same home with possible firearms or weapons, it was considered appropriate in those circumstances.
Using a word like “family” brings into question who is intended to be captured here. If I could beg the committee’s indulgence here, I would mention that Criminal Code aggravating sentencing factors do cover some members of families who we would want to capture under family violence. 718.2(a)(ii.1) covers abuse of a person under the age of 18, which would include a minor child of the offender. Subparagraph 718.2(a)(iii) covers the concept of abuse of a position of trust or authority over a victim, which could get to this.
Although the department would share the concerns related to this particular amendment, the department wonders whether there will be a particular type of family violence that becomes evident from the report on the National Inquiry into Missing and Murdered Indigenous Women and Girls that is not covered under these amendments. Whether there is a need for this broad concept, where there might be questions about over-breadth in terms of, does it cover and does it need to cover a second cousin who lives in another jurisdiction? Or does it cover relationships akin to family, who might be living under the same roof, but might not be family? Are we talking about blood relatives? What does this concept mean?
The Chair: Thank you, Ms. Davis-Ermuth.
Senator Pratte: I would turn my question to Senator Dyck. Maybe you could explain exactly who you’re trying to capture with this amendment?
Senator Dyck: I think it covers a variety of individuals, like a person’s grandfather, uncles and cousins. It could include family members who were adopted rather than blood relatives. I think it captures more the idea of family in terms of having a blood relationship, perhaps living under the same roof, not necessarily, but part of the same community and having an ongoing relationship.
Senator Pratte: It would be the extended family in this case really?
Senator Dyck: It could be, if by extended family you mean grandparents, uncles —
Senator Pratte: Uncles, brother, brother-in-law.
Senator Sinclair: Cousins.
Senator Dyck: Cousins.
Senator Sinclair: That’s who you want to include?
Senator Dyck: Yes.
Senator Pratte: It’s pretty broad.
Senator Batters: I missed a part of this discussion, but it sounds like the Department of Justice is concerned about how broadly this could be defined; is that correct?
Ms. Davis-Ermuth: Both how broadly it could be defined and also whether it would capture all of the relationships that Senator Dyck has expressed are important to cover as well.
Senator Batters: Another couple of examples I was just thinking of are step-relations, whether that would be included. There are some people, as part of their cultural background, who refer to certain people as cousins and that sort of thing even though they aren’t technically first cousins or what have you, but they view those people as close to their family. In the Criminal Code, when you don’t have precise definitions, trouble can happen. That’s what I would be concerned about.
Ms. Davis-Ermuth: There is also the issue of the continual paradox that exists with the nature of these very important issues in terms of using the Criminal Code to target intergenerational violence that might be caused by colonialism as well, and whether that increases over-representation and over-incarceration.
It’s such a challenging issue and a paradox. On the one hand, you want to make sure that every protection is available for the victims of these crimes, but, on the other hand, you also want to ensure that the measures imposed through the criminal justice system don’t exacerbate the problems either.
Senator Gold: As I said earlier, this only underlines it. This whole area is such a vexing policy dilemma because of the ways in which the best-intentioned legislation — and indeed it’s in the minister’s letter — has inevitable beneficial consequences for some segments of the community and necessarily adverse consequences on others.
As legislators, we have to make those decisions. I’m uncomfortable though. It’s really Senator Batters’ point, but I want to underline it. We are talking about the Criminal Code here. We are also talking about a provision that would have a consequence on the liberty of the person who is subject to the sentencing principles. To introduce a concept of “family” that is not defined in the Code, and around which I’m not sure we should be making the specific delineations as to which degree of separation in the family, strikes me as something that needs proper study — perhaps in an observation or waiting for the report to come out after having a chance to absorb it.
It’s true that Parliament will be rising probably too soon to get it all done, but I think we ought to be prudent before introducing a legal term, “family,” into the Criminal Code that isn’t adequately defined. I’m vexed by the dilemma here.
The Chair: Any other comments before I call the vote on the proposed amendment?
Senator Dyck: Senator Gold, thank you for bringing that up. We are in a timing situation here. I understand that in the Criminal Code things should be clearly defined. I also think we have judges who are capable of discriminating in their judgment of what is family. We’re also in the time crunch where the inquiry report is coming out on June 3. It may include something like this, but there is no way that we will be able to include anything at all because there will be an election called. This gives us an opportunity to start that process. It may not be perfect, but is it something that we can live with? It is something to get into the Criminal Code to acknowledge that there is this huge problem, and that we can come back and, depending on what the report says, modify it after the report is released.
Senator Pratte: I have a question again for the officials. I’m told that the word “family” is used something like 23 times in the Criminal Code. I’m not sure if that’s accurate. Each time it is used, is there a particular definition such as in section 110?
Ms. Davis-Ermuth: Unfortunately, I don’t have reference to those particular provisions. Under the circumstances, I’m not sure about the ways in which it’s used within those sections.
Senator Pratte: Senator Dyck, as a starting point, would you be open to a change that would specifically refer to any person who resides in the home of the offender or the victim, which would be more precise than “family member”? I’m just trying to find a way out here.
Senator Dyck: Thank you for that suggestion, but I suspect that the person may not necessarily reside in the same home. That would eliminate too many family members who don’t reside there, so I wouldn’t favour that.
The Chair: As Senator Pratte has mentioned, there are many references all through the code to the word “family.” For instance, your spouse, family and friends — I have it here — or “immediate family.”
When you say “immediate family” in the Criminal Code, you know it is restricted. If you say “family and friends,” it’s a much wider net of “relativeness,” if I could use that term. Or we could use other concepts in which the word family is qualified. This is in the context, essentially, of the crime of violence committed by an intimate partner.
We are on a very specific offence. In that context, the word “family” will have to be interpreted by the judge. The judge would know how extended a family might be. If you are the first cousin, it’s not the same thing to be at the third alliance level. It’s a matter of each case to be determined by the judge in the sentencing, because we are in the sentencing. We are not accusing somebody here. The person has already been found guilty. We’re trying to determine what is appropriate as a sentence, taking into account the fact that there might have been violence against either the family of the delinquent — of the person or of the offender — or of the victim’s family.
It’s a concept that is open, but, in my opinion, it is restricted to the crime under sentencing, which is essentially violence by an intimate partner. In my opinion, we’re not considering the other elements of the code. For instance, in the section of criminal harassment:
(d) engaging in threatening conduct directed at the other person or any member of their family.
“. . . or any member of their family” could be interpreted very widely. We’re not creating something that doesn’t exist in the code as a concept.
Senator Pratte: That’s what I wanted to know.
The Chair: Again, I’m not testifying.
Senator Pratte: No, but I think the fact that it’s used extensively in the code —
The Chair: What I gave you here is an example.
Senator Pratte: — without specific definitions, means the courts will decide what a family member is in the context.
The Chair: Exactly. In the section I’m quoting to you, the court will definitely have to interpret it.
Senator Batters: On that, then, why is the Department of Justice concerned about this particular instance if there are those issues where you are not?
Ms. Davis-Ermuth: I take your point particularly on criminal harassment. Part of it is because the department is receiving these amendments without a lot of time to research in the code. Those concerns did come up in terms of whether there would be arguments at sentencing hearings and a need to determine the meaning of that and also the fact that there are other sentencing factors that might cover it. However, good examples have been brought to the committee’s attention of how this term is used in the code.
Senator Pratte: Considering all this, I would support the amendment. Also, I believe the court will take into account the report of the national inquiry to be published on June 3. In these circumstances, I will support the amendment.
[Translation]
Senator Dalphond: Very briefly, a few references were made to Professor Sheehy this morning. Let me remind you that she mentioned the following in her testimony and in the accompanying reference document:
[English]
The new definition also fails to respond to the targeting of others, whether new boyfriends, family members or friends by the perpetrator.
So I think that the proposal favours a broader perspective, which I think is good, so I will support it.
The Chair: I understand that the honourable senators are ready for the question.
All those in favour of the amendment, as introduced and adjusted with the concurrence of the members of the committee, please raise your hand.
Senator Batters: On division.
Senator Boisvenu: On division.
The Chair: Thank you. There is another amendment.
Senator Pratte: A recorded vote, please.
[Translation]
The Chair: Madam Clerk, would you like to proceed with a recorded vote?
Ms. Hogan: The Honourable Senator Joyal, P.C.?
Senator Joyal: Yes.
Ms. Hogan: The Honourable Senator Batters?
Senator Batters: Abstain.
Ms. Hogan: The Honourable Senator Boisvenu?
Senator Boisvenu: Abstain.
Ms. Hogan: The Honourable Senator Dalphond?
Senator Dalphond: Yes.
Ms. Hogan: The Honourable Senator Dyck?
Senator Dyck: Yes.
Ms. Hogan: The Honourable Senator Gold?
Senator Gold: Abstain.
Ms. Hogan: The Honourable Senator Housakos?
Senator Housakos: Abstain.
Ms. Hogan: The Honourable Senator McIntyre?
Senator McIntyre: Abstain.
Ms. Hogan: The Honourable Senator Miville-Dechêne?
Senator Miville-Dechêne: Yes.
Ms. Hogan: The Honourable Senator Pratte?
Senator Pratte: Yes.
Ms. Hogan: The Honourable Senator Sinclair?
Senator Sinclair: Yes.
Ms. Hogan: Yeas, 6; nays, 0; abstentions, 5.
The Chair: The amendment is carried.
[English]
We’ll move on with the next amendment, section 293(b). You have it in your stack of amendments. It’s identified as LD-293.123b.
Senator Dyck: I move:
That Bill C-75 be amended on page 123, by adding after line 9 the following new clause:
“293.1 The Act is amended by adding the following after section 718.21:
718.22 A court that imposes a sentence in respect of an offence that involved the abuse of an intimate partner shall consider the increased vulnerability of female persons who are victims, giving particular attention to the circumstances of Aboriginal female victims.”.
The Chair: Explanation?
Senator Dyck: With regard to witness testimony, we heard from Commissioner Buller, and I will quote her:
Next, where there is an Indigenous woman, girl or member of the 2SLGBTQQIA community who is a complainant, on sentencing that must be an aggravating factor in sentencing and included in section 718.2 of the Criminal Code. Nothing less than that is going to protect the safety of Indigenous women, girls and members of the 2SLGBTQQIA communities.
In response to my question on this, she reiterated that it must be included as an aggravating factor:
We’ve heard from many people across Canada, and I’m sure this committee has heard the same thing, where, when the complainant is Indigenous, the sentence is less than would be for a complainant who is non-Indigenous, or who is White, in other words. I think we have to, as a nation, make it very clear that the safety of Indigenous women, girls and members of the 2SLGBTQQIA communities are so important and so valued that it has to be a statutorily confirmed aggravating factor under 718.2.
Senator, that is primarily to address deterrence and denunciation because our women and girls and members of the 2SLGBTQQIA communities are going missing and being murdered because people can get away with it. So all the more need for stronger deterrence, both individual and general, as well as denunciation.
Later she added:
Having an amendment to 718.2 to include indigeneity as an aggravating factor to address deterrence and denunciation doesn’t necessarily outweigh or negate the Gladue principles as they apply to the accused.
Our witness from the Indigenous Bar Association, Ms. Hensel, said:
Absolutely. In terms of our history of colonization and the tragic legacy of residential schools, the discrimination we experience in the criminal justice system is distinct. Demographically, there is no other group of women experiencing the same impact of victimization, violence, criminalization and incarceration. There’s no other group nationally, anyway.
Ms. Heidi Illingworth, the Federal Ombudsman for Victims of Crime, said:
On the one hand, we’re saying that we have to recognize there’s over-representation of Indigenous people as perpetrators, but from our point of view we’re also seeing over-representation of Indigenous women as victims. How do we address this?
I’m here to talk about victims and about their experiences. We have to make sure that we are being very responsive to violence against women, given the pervasiveness of it in all of our communities across Canada, and how we can make sure that we’re taking swift action and that we’re protecting women and children. To me, that has to come on an equal footing to the needs of the offender. Yes, we have to have a full and fair process, but we have to also consider the harm done to the women and the children — children who are witnessing and are at times victims themselves of the violence.
It’s an incredibly difficult balancing act, but we have to do a better job of recognizing what the victims have gone through and how they can be supported and protected.
Then I asked her:
Would you be supportive of an amendment that would sort of draw attention to that dilemma and instruct the judges to be aware of that so that the intimate partner violence section comes through strong rather than be being diminished?
Ms. Illingworth said:
I would be for sure.
I would also point to the letter that the Minister of Justice tabled with the committee. It states at page 3 of Annex 1:
Intimate Partner Violence: Recent data shows the prevalence of intimate partner violence (IPV) in Canada and highlights that the overwhelming majority of victims are women.
The majority of victims were women, 79 per cent.
Later on, they say:
Indigenous women (10%) were about three times as likely to report being a victim of spousal violence as non-Indigenous women . . . .
That indicates very clearly that the department was aware of the increased incidence to women. In addition, in Annex 4 of that same letter, it says:
In 2017, IPV represented close to one-third (30%) of all police-reported violent crime in Canada.
Then they repeat:
As well, 79% of victims of intimate partner violence were women, and intimate partner violence was the leading type of violence experienced by women.
They also say:
Based on findings from the 2014 General Social Survey on Victimization, Indigenous women . . . were about three times as likely to report being a victim of spousal violence as non-Indigenous women.
It’s very clear that women, in particular Indigenous women, are more vulnerable and more prone to intimate partner violence. That’s the rationale for the amendment.
The Chair: Comments on Senator Dyck’s amendment?
Senator Batters: I have a couple of points on this after I ask my question. I’m wondering about the Department of Justice’s reaction to this one.
Senator Dyck, I’m also wondering if this would provide for an aggravating factor during sentence for assault.
Senator Dyck: It comes under section 718, but not under subsections (a) to (e). Section 718.21 talks about “additional factors” considered to be aggravating.
Senator Batters: What types of offences would it apply to? Just assault? Murders? What would it apply to?
Senator Dyck: This applies only to an offence that involved the abuse of an intimate partner.
Senator Batters: Okay. Maybe the Department of Justice lawyers can provide us with clarity. I’m wondering what types of offences this applies to.
The Chair: Mr. Villetorte?
Mr. Villetorte: Thank you. The section, as Senator Dyck said, would be a new section in the Criminal Code. It is not phrased as in 718.2 as an aggravating factor. There’s a clear direction in section 718.2(a) that a sentence should be increased or decreased to take into account aggravating or mitigating factors. There is no clear direction here that it would, in fact, be treated as an aggravating factor.
That said, the phrasing makes me think about the wording that you would find in section 718.2(e) that we were talking about, the Gladue factor, especially the tail end of the expression with particular attention to circumstances of Aboriginal female victims.
The question was to what offences this would apply. There’s not a specific offence of abuse of a victim partner. It’s the circumstance. Whenever evidence is led at sentencing where there has been abuse of an intimate partner, the court would have to take that into account.
Senator Batters: In addition to assaults, it could also include murders?
Mr. Villetorte: In looking at the proposed amendment in 718.22, it would apply as long as it is committed against an intimate partner.
Senator Batters: Okay. Any other types of offences that I might not be thinking about?
Mr. Villetorte: No, generally —
Senator Batters: Assaults and murders?
Mr. Villetorte: Yes.
Senator Batters: Harassment?
Mr. Villetorte: Yes, if it’s committed against an intimate partner.
Senator Batters: That’s applicable to this section. All right.
Senator Dyck, given what Mr. Villetorte has just said about that, your particular amendment section does not provide this to be an aggravating factor, just something simply to be considered. Is that how you intended it, or were you intending it to be an aggravating factor in sentencing?
Senator Dyck: We discussed this. My first thought was that it should go under section 718.2(a) to (e). However, based on the evidence given in this paper by Professor Grant, it was clear that if it’s included under there, it would most likely be discounted as an aggravating factor because already section 718.2(a)(ii) is being discounted in practice.
Therefore, we thought it would be better to put it under 718.22 because, in this case, by creating a separate clause, judges would conduct an automatic and distinct analysis, and they would have to then consider the increased vulnerability of persons who are victims, giving particular circumstances to Aboriginal female victims.
They’re having to look at it, and in a sense that’s looking at it as an aggravating factor, although it doesn’t use the words “aggravating factor.”
Senator Batters: Not only does it not use the words, but the Justice lawyer has just said it’s something to be considered.
It doesn’t indicate whether it should be considered aggravating. Am I correct in that?
Mr. Villetorte: Again, in determining a fit sentence, this will be taken into account. What I said is that it doesn’t have the direction that 718.2(a) has, which is very specific in terms of aggravating mitigating factors. That said, it is at a place in the Criminal Code where it would essentially be considered maybe a sentencing principle.
In essence, it’s a direction given to the court to determine a fit and proportionate sentence to the degree of responsibility of the offender and the seriousness of the offence.
Senator Batters: Senator Dyck, I think this is probably similar to the private member’s bill that you brought in that when it indicates in this particular amendment section “the circumstances of Aboriginal female victims,” there’s no further definition on that, right? Just like in the private member’s bill that you brought forward, there’s not a certain percentage of Aboriginal ancestry that someone would need to have to be included within this section. It’s just simply whether they have any Aboriginal ancestry at all. Is that correct?
Senator Dyck: There is no definition of “Aboriginal,” but I would also remind the senator that if you look at 718.2(e), there is no definition there either of the word “Aboriginal.” The only definitions come within the Constitution, with Aboriginal people being Indian, Metis or Inuit.
Senator Batters: Okay. Maybe the Department of Justice lawyers can provide an indication. Is there any concern about that?
Mr. Villetorte: No, I concur with Senator Dyck on this.
Senator Batters: That’s how it’s defined generally. Thank you. Given all of those factors we’ve just been talking about, what is the position of the Department of Justice on this particular amendment?
Mr. Villetorte: In keeping with the other motion I spoke to, I’m not sure at this point whether the department would support it or not. It’s in keeping with the motions that were previously adopted. I guess there’s one comment —
Senator Batters: What do you mean? Other motions adopted at this committee?
Mr. Villetorte: The direction to the sentencing court to give paramount consideration to the denunciation and deterrence of similar offences.
Senator Batters: Right, the earlier amendment this committee passed.
Mr. Villetorte: If I may add something I forgot, at sentencing similar information on the impact on the victim is already considered where a victim impact statement is submitted to the court. There’s additional guidance to the court to know what the impact of the offence has been on the victim.
Senator Batters: So this type of information is already considered as part of the victim impact statement?
Mr. Villetorte: No, it reinforces. The victim impact statement is a report that looks at the impact, physical or moral, on the victim. This again would be a sentencing principle to ensure that the fact that the offence was committed against an intimate partner is considered, especially the increased vulnerability of a female victim of an intimate partner is taken into account, giving particular attention to Aboriginal female victims.
Senator Batters: Okay. So when we had the earlier witnesses that Senator Dyck was referring to in arguing for this particular amendment, does it usually happen that then the minister and the Department of Justice senior officials come to a decision about, at that point, how they’re going to instruct you to come to this committee and give us answers as to the acceptability of an amendment? Or does that usually happen after the fact, after it has already gone through this committee?
Mr. Villetorte: That’s not a decision I’m privy to. I’m here to talk about the technical aspects of the motion at clause by clause.
Senator Batters: Is there anyone else from the Department of Justice who can provide us more guidance on this particular issue?
The Chair: Ms. Morency?
Carole Morency, Director General and Senior Counsel, Department of Justice Canada: Just to reiterate what I think the committee already knows, once a committee adopts a bill with all of the amendments it is reported back to the Senate. The government will then make a decision on how to deal with the amendments and whether they wish to support them or not. Certainly the Senate will follow its usual process, and if there are amendments that are adopted by the Senate, it will have to go back to the house.
In the current situation, we, the officials, saw the bulk of the motions last night or overnight and looked at them more carefully. We appear certainly on behalf of the minister and certainly to try to assist the committee in speaking to our understanding of the motions before the committee, but we’re not in a position, obviously, to bind the government. That will be a decision that the minister and the government will take independently.
Senator Batters: Is this particular amendment being presented right now one of the ones you saw for the first time last night?
Ms. Morency: I believe so but, to be honest, in going through the testimony of various witnesses, a lot of witnesses have spoken to similar issues and have made various proposals. In a sense, it’s not surprising to see some motions to this effect because some of the witnesses have spoken to this.
I think the only other thing I would add to what my colleague has said, with some of the other motions the committee has recently adopted, many of them speak to similar types of issues in terms of addressing intimate partner violence and in terms of when it’s committed against an Indigenous woman or based on sex.
I guess the question perhaps is what is the cumulative impact of all of these together in practice? That would be something we would look at normally, again, coming out of a committee process where amendments were adopted. As officials, we would step back, look at the big picture and provide advice to our minister.
Senator Batters: Right, and on this particular one, obviously the interplay with Gladue is important, particularly as there could be a significant percentage of accused who is Aboriginal as well, dealing with this intimate partner situation. Can you give us any further guidance on that?
Mr. Villetorte: Not really, just to add that this doesn’t limit the ability or the duty of a sentencing judge to impose a sentence that is proportionate in the circumstances.
Ms. Morency: At the end of the day, the sentencing process, as my colleague has said, is an individualized process in every case. Even if it’s not actually codified in some of these provisions, the courts will typically look at all mitigating or aggravating circumstances and will be aware of over-representation of accused. The Gladue principle has factored very principally in a lot of that.
It’s always going to be a bit of a balancing act in accordance with the sentencing principles that the Criminal Code provides, in accordance with the aggravating factors that the Criminal Code provides and in accordance with all of the other factors that the committee is now considering and the common law, where many of these factors are typically considered, whether they’re codified or not. That’s the basic sentencing approach.
Senator Batters: Yes. Thank you.
The Chair: I have a question, Mr. Villetorte. When I look in the code under section 718.21, it is under the heading “Organizations.” If we add proposed section 718.22, would it be seen as part of “Organizations,” or should it be placed somewhere else in the act? I just want to be sure that we remain, as I always say, in sync with the general chapter.
Mr. Villetorte: Section 718.21 is sentencing principles but applicable to organizations.
The Chair: That’s it; yes.
Mr. Villetorte: I must say it’s a bit odd that 718.22 would come after 718.21. As I said earlier, it will be treated as a sentencing principle, and that should be under 718.2 in terms of the numbering, anywhere from 718 to 718.2.
The Chair: Should we identify the amendment with the proper numbering so that it would be something like 718.2.1?
Senator Dyck: We were advised that 718.21 and 718.22 are still under 718.2. It’s an anomaly in the numbering, but it’s still under “Purpose and Principles of Sentencing.”
The Chair: That’s the answer.
Mr. Villetorte: Again, it’s because there are sentencing principles applicable to all cases, individuals, that are specific ones, and then you would be following one that is not applicable to organizations, just sort of the logic that goes through it. For the numbering, it would be logical that it would be before 718.21.
Senator Sinclair: It may be that it requires a heading. That might be the logical way of looking at this, other than “Organizations.” It may also simply go under the next heading, which is “Punishment Generally.” It flows under that heading, so just moving the heading. The headings themselves are merely to assist. They’re not directing judges in any way with regard to the code, other than assisting where to find things. If it were put under the heading of “Punishment Generally,” I think it would make more sense than under the heading of “Organizations.”
I think it’s a simple solution, but it’s a printer’s solution. I don’t know that there’s a problem here that we need to be too concerned about, and I don’t think it needs to address the question of the amendment. I think it’s just a question of how the headings of the Criminal Code are laid out.
Mr. Villetorte: If I may intervene, this is up to the committee, but 718.3, the next one, which is “Punishment Generally,” goes more to the mechanics of the punishment itself. If we look at the degree of punishment, the cumulative impact and the discretion respecting the punishment, it goes to the mechanics of it.
The Chair: This is more as a principle.
Mr. Villetorte: That’s right.
The Chair: So you don’t see any incoherence to adopt this amendment where it is located in the code at this stage?
Mr. Villetorte: As proposed?
The Chair: Yes, as proposed.
Mr. Villetorte: No, I don’t think it’s fatal.
The Chair: Okay. I don’t want to take an initiative that would create uncertainty, in terms of the objective of the amendment and the place in the code where it would be located. What is your answer?
Mr. Villetorte: Again, I guess the risk is courts look at 718 to 718.2 for the principles. I wouldn’t want proposed section 718.22, because it’s after the ones relevant to organizations, to be forgotten.
The Chair: Okay. Are honourable senators ready for the question? All those in support of the amendment, as introduced by Senator Dyck, please raise your hand.
Senator Boisvenu: On division.
Senator Batters: On division.
The Chair: Shall clause 293, as amended, carry?
Senator Batters: On division.
Senator Boisvenu: On division.
The Chair: On division, thank you.
Shall clause 293.1 carry?
Senator Boisvenu: On division.
Senator Batters: On division.
The Chair: On division, thank you.
Honourable senators, I’m looking at the clock. Thank you for your diligence this morning. We will, of course, resume our sitting with section 2, clause 294 of the act. Thank you, honourable senators.
(The committee adjourned.)