Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 11, Evidence - May 29, 2014
OTTAWA, Thursday, May 29, 2014
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-394, An Act to amend the Criminal Code and the National Defence Act (criminal organization recruitment), met this day at 10:32 a.m. to give clause-by-clause consideration to the bill; and to examine the document entitled Proposals to correct certain anomalies, inconsistencies and errors and to deal with other matters of a non-controversial and uncomplicated nature in the Statutes of Canada and to repeal certain provisions that have expired, lapsed or otherwise ceased to have effect.
Senator Bob Runciman (Chair) in the chair.
[English]
The Chair: Welcome, colleagues, invited guests, members of the general public who are following today's proceedings of the Standing Senate Committee on Legal and Constitutional Affairs. Today we are completing our study on Bill C-394, An Act to amend the Criminal Code and the National Defence Act (criminal organization recruitment). This bill amends the Criminal Code to make it an offence to recruit, solicit, encourage, coerce or invite a person to join a criminal organization. It establishes a penalty for that offence, and a more severe penalty for the recruitment of persons who are under 18 years of age. This is our final meeting on Bill C-394 and we will be proceeding shortly with clause-by-clause consideration of this bill.
Before we begin, I want to advise members that we have an official from Justice Canada, and I have asked him to come forward to the table because I'm assuming there will be technical questions that members might have. Matthew Taylor is counsel from the Criminal Law Policy Section of Justice Canada. Welcome, Mr. Taylor.
Is it agreed that the committee proceed to clause-by-clause consideration of Bill C-394, An Act to amend the Criminal Code and the National Defence Act (criminal organization recruitment)?
Hon. Senators: Agreed.
The Chair: Shall the title stand postponed?
Hon. Senators: Agreed.
The Chair: Agreed. Shall clause 1 carry?
Hon. Senators: Agreed.
The Chair: Agreed. Shall clause 2 carry?
Hon. Senators: Agreed.
The Chair: Agreed. Shall clause 3 carry?
Hon. Senators: Agreed.
The Chair: Agreed. Shall clause 4 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 5 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 6 carry?
Some Hon. Senators: Agreed.
Senator Joyal: I think my colleague, Senator Baker, will propose an amendment to that clause.
Senator Baker: Mr. Chairman, it is a new clause 6.1, and I would ask the witness from Department of Justice if he has received a copy of this amendment. He has signified that he has, and the amendment reads as follows:
That Bill C-394 be amended, on page 2, by adding after line 8 the following:
"6.1 Paragraph 196.1(5)(a) of the Act is replaced by the following:
(a) an offence under section 467.11, 467.111, 467.12 or 467.13;".
Now, Mr. Chairman, this is a consequential amendment to add 467.111 to the exception in subclause (5) of 196.1, which deals with the extension of a wiretap or a warrant, and it provides for an exception to the normal rule. In other words, if there is a terrorism offence or an organized crime offence, the exception will apply. Without this amendment, it is my understanding — and I would like for you to ask the Justice representative for his opinion on this — that without this amendment, this provision, this exception, will not apply to this new law that we are passing.
Matthew Taylor, Counsel, Criminal Law Policy Section, Justice Canada: Certainly, the committee is well aware of the omission of that provision in 196.1(5)(a), and that section 196 was added to the Criminal Code as a result of Parliament's passage of Bill C-55.
When I look at the proposed amendment, and I followed the proceedings, adding 467.111 to paragraph (a) would bring consistency in terms of the way the Criminal Code treats the specific criminal organization offences and, indeed, the way the private member's bill would propose to do so as well.
I would say, though, it's not necessarily the case that this would result in a gap. When one looks at 196.1 of the Criminal Code, you also have paragraph 5(b). That provision deals with any other "offence committed for the benefit of, at the direction of or in association with a criminal organization." The reason that provision is there is because any offence, by definition of criminal organization offence, could be the subject of a wiretap investigation in an organized crime context, so it could be drug trafficking, for example, where that's a serious offence.
It's true that it would bring greater clarity, greater consistency by adding it in paragraph (a) but strictly speaking, paragraph (b) would address this new participation offence, and so the exception to the normal notice period of 90 days would still apply when investigating the participation offence.
Senator Baker: Mr. Chairman, let me then ask the witness this question: The witness says that the matter is covered under paragraph (b), which says:
. . . an offence committed for the benefit of, at the direction of or in association with a criminal organization; or
(c) a terrorism offence.
The commission of the offence is covered by one and two in the three present sections of that section of the Criminal Code.
Section 467.11 is participation in a criminal organization knowing that indictable offences are being committed. That's a separate matter; that's "participating in."
Now, when you get to section 467.12, it means the commission of an indictable offence. The word "knowingly" is not there because the normal mens rea applies to the commission. That's the commission. So there's participation, there's the commission, and then the in-prison-for-life section that says when you "instruct."
So the way this section reads — an offence committed — we're not talking about an offence committed with this bill. The mover of the bill says the intent of the legislation, and as I read it, it's not the commission of an offence; it's a portion of section 467.11 in that it's not participating but it's encouraging somebody to participate. It is not the encouraging of somebody to commit. "Commit" is section 467.12, the commission of the offence. The word "knowingly" is not there because it drags with it the normal mens rea of a commission of an offence.
Does the witness still hold his opinion in view of my observation?
Mr. Taylor: Your observations are accurate in terms of the three different offences being available. As I understand it, relying on paragraph (b) as opposed to having it in paragraph (a), as the amendment is proposing, would require an additional step, essentially. It would require the individual to demonstrate that the offence committed was the participation offence, and that said offence was committed for the benefit of, at the direction of, or in association with a criminal organization.
So you don't get the shortcut, as it were, in terms of the specific offences in paragraph (a), but in my assessment, paragraph (b) would still address it.
Senator Baker: We'll just have to disagree on that.
Senator Plett: The witness answered my first question: You said clearly you don't foresee any real gaps as it is worded, so I won't prolong that one.
My second question is: Do you think this is something that is fairly easily fixable down the road? Possibly, if we were to add an observation to our report and ask for this to be corrected down the road, could that be done fairly simply?
Mr. Taylor: We pay attention to the deliberations, and it's something we've made note of. Whatever this committee ultimately decides, we'll take that back.
In terms of amending it in the future, it strikes me that it's not a difficult amendment; it would just be something the government would need to decide they wanted to do. Certainly, it isn't something that's overly complicated.
Senator Plett: I would then make a few comments, unless you want to keep it strictly to questions until later. I have a couple of comments.
The Chair: Go ahead.
Senator Plett: First of all, I would like to commend both Senators Joyal and Baker for pointing out a few errors or oversights in this legislation. You have done and are doing your job, and I appreciate that.
However, having said that, we heard very clearly from the witness yesterday — from Mr. Gill, the sponsor of the bill — and this was further confirmed by the chair, that amending this bill in any way has the essence of killing this very important legislation. Indeed, it is our job to find errors, and as I said, Senators Joyal and Baker did that.
But I do not believe it is our job, chair and colleagues, to knowingly kill or even substantially delay important crime legislation that will offer further protection to our children, which is what this does. This is much too important a bill not to pass because of a consistency issue that will really have no bearing on the application of the law and is something that can be corrected. We need to be reasonable here, and if we append observations encouraging the government to fix these minor issues, we are doing our jobs as legislators, while ensuring law enforcement bodies have the tools at their disposal to protect our youth.
With that in mind, when the time comes, I do have an observation to make on both of the inconsistencies that have been discussed at length, and I am prepared to do that whenever you think the time is right.
Really, other than just simply again emphasizing that we are not able to amend this legislation — because of the sponsor being a parliamentary secretary, we are going to kill this if we amend it. I'll stop there.
Senator Joyal: Mr. Taylor, we were told yesterday that in the other place a representative of the Minister of Justice — I don't know if it was the parliamentary secretary or the Minister of Justice himself — introduced such an amendment or tried to introduce such an amendment.
Were you a part of the drafting of that amendment, as a representative of the Department of Justice — you or a member of your team?
Mr. Taylor: During the House of Commons debates, I did look and there was not an amendment proposed, either before the House of Commons committee or at report stage to address the specific issue that was raised. I've got all of the amendments with me that were proposed, but that one was not proposed.
In terms of whether others sought to do so, I'm not aware.
Senator Joyal: Yesterday, when we discussed with the sponsor of the bill, we were told that the amendment was ruled out of order by the Speaker. I asked to get the ruling, so that I could read the explanations for why that amendment at that stage would be inadmissible on the basis that it was not covered by the intention of the bill.
Frankly, I was hesitant to accept that interpretation. In my understanding of the rules, when a section of the code is included in a bill, adding an element into it that doesn't change the substance of the section is totally admissible on the basis of precedence, and I could quote many decisions and rulings in relation to that. When I was a member of Parliament, I myself introduced amendments to sections of the code in debates. That's the way I understood the rules.
So yesterday, when we were told that such an amendment was proposed by the Department of Justice, and I asked to have the explanation, I was left "wanting" that the decision of the chair could have been to refuse such an amendment, since, as you said yourself, it would make the Criminal Code consistent.
As my colleague Senator Baker has mentioned, paragraph (b) is about the commission. The code speaks for very specific concepts. A commission is something that you do immediately. It's not an intention; it's something that is linked to an actual gesture or initiative that you have to prove in court.
So it seems to me that the objective of the bill would be better served with that kind of addition to it to make it, as you said, consistent and clear, if we were to adopt legislation that will be interpreted by the court as serving the objective for which it was adopted.
Thank you for setting the record straight that, in fact, there was no such amendment in the other place, but, on the other hand, that you accept the conclusion that it would be consistent and add clarity to the objective of the legislation.
Senator Baker: I had gone over all of the evidence before the standing committee for the House of Commons, and I didn't see any such amendment proposed. Neither was such a determination made at report stage. But I think that the witness, when he was giving his evidence, got it mixed up with another section, and so I wouldn't hold him to stating that it was determinative that this matter was declared unlawful or inadmissible.
However, it's on the record of the committee here. I'm not saying it's not on the record. What I'm saying is that the witness unintentionally made an error when he made those definitive statements concerning that such an amendment would be held to be out of order by the House of Commons.
On one further matter, Mr. Chairman, the clerk of the committee gave us an opinion yesterday, verified to us — you actually gave the opinion concerning whether or not this bill would go to absolute death if we were to venture an amendment simply because the member is now a parliamentary secretary. Now, Mr. Chairman, you read out a section, but as we all know, you can change the sponsor of a bill simply on a motion when it's referred back to the Commons, if the bill is amended. I'm wondering if the chair can't give an opinion on that now, whether we could perhaps have the clerk research this matter further as it deals with this legislation and other legislation. Because, as we all know, the House of Commons is the master of its own destiny and any motion can be made that is constitutional before the Commons, and the normal procedure is to make a motion to exchange the sponsor and the amended bill would be reintroduced in the Commons as any other amended bill would be when it's referred from the Senate as an amended piece of legislation.
Senator Plett: First, thank you, Senator Baker, for the observations you made about the mistake that the witness made here yesterday. I want to reiterate those comments. The witness was working with the same information that some of us were working with, and he got his information from the same place, so I take exception to the fact that we weren't given correct information as well. Nevertheless, he was working with that.
Now, on the second matter of the bill dying again, the witness has said very clearly today that it doesn't really leave a gap. This is something that can be corrected. The fact of the matter is that there is more than enough evidence, I believe, that the bill will die. It may be introduced at some future date. I don't think there's any argument there, but it is an important piece of legislation, much too important, colleagues, for us to take a chance on that, especially in light of the fact that the witness has said it does not leave a significant gap and that this legislation can as easily be amended as it can be brought back, so if we are unhappy with the legislation and with the fact of inconsistency, then we need to make sure that we make our wishes known and that we ask the people in the other place that we would like something brought forward in the future.
So again, I do not believe that an amendment at this point or even a delay of any kind by us doing a whole lot more research will in any way improve this bill at this point, so I think we should go ahead.
The Chair: I should point out that after our meeting yesterday I did ask the clerk to investigate further, and she did find out. We haven't been able to determine the issue surrounding unanimity in terms of support for change of sponsor, but my assumption is that the house, like the Senate, with unanimous consent, can probably achieve that if they wish to do so.
Under the Standing Orders in the house, the Speaker, Deputy Speaker, ministers and parliamentary secretaries are ineligible to sponsor private member bills by virtue of their offices and their names are dropped to the bottom of the list for as long as they hold such a position. That's standing order 87(1)(a)(ii). That's the reality of the situation.
Senator Baker: You did partially address my question. That wasn't my question. My question was, as you well know, that a motion can be introduced in the Commons in a situation like this, similar fact situation, and the sponsor of the bill could be changed by motion of the House of Commons. I'm sure the clerk, upon reflection, would agree with that.
The Chair: She doesn't have to comment.
Is there any further discussion surrounding the proposed amendment? I want to make sure when I call these votes that if anyone is in doubt with respect to the intent, make sure you put up your hand before we proceed. I don't want anyone embarrassed. So is it your pleasure, honourable senators, to adopt the motion in amendment?
Some Hon. Senators: Agreed.
Some Hon. Senators: No.
The Chair: Defeated. The amendment has lost, so shall clause 6 carry?
Some Hon. Senators: Yes.
Some Hon. Senators: On division.
The Chair: Carried, on division. Shall clause 7 carry?
Hon. Senators: Agreed.
The Chair: Carried. Shall clause 8 carry?
Hon. Senators: Agreed.
The Chair: Carried. Shall clause 9 carry?
Some Hon. Senators: Agreed.
Senator Baker: Chairman, this is the amendment which the Minister of Justice for the Province of Manitoba, the great Province of Manitoba, recommended to this committee. The Minister of Justice suggested — well, he made it pretty clear — that coercion was being used with young persons, as young as, he said, age 11 or age 10. So, therefore, the word "coerce" is not captured by the word "solicit" or "encourage" or "invite." It is an extreme form of pressure, and he gave several examples that could be illustrated by the word "coerce," and he recommended that it be included.
When the House of Commons heard that submission, the exact same submission that he made before this committee, the NDP representative on the House of Commons committee seconded the motion from the Conservative member of the committee that the word "coerce" be included in the portion of the bill that dealt with young persons. I read out the sentence during our proceedings here.
So an amendment was made. Those were the words made justifying the amendment to young persons, and then another member intervened and said "under the age of 18." Then the motion was put by the chair of the committee: Shall the clauses — and he included three different clauses — pass? The committee said yes without a specific reference to the line that we do here when we amend bills, that the word "coerce" be included. Those were his exact words: Does the committee agree that the word "coerce" be included in the section? And of course we now see that the word "coerce" was included but it was put in the wrong section. It doesn't cover young people. It doesn't cover those under the age of 18. It does not cover those persons who will be subjected to a mandatory minimum punishment. The most serious part of this legislation is people under the age of 18. If you encourage somebody, coerce somebody, if you invite somebody, solicit somebody but not coerce, then you are in the mandatory minimum jail sentence if you are convicted.
So now the word "coerce" is in the introductory paragraph to the paragraph where it should be, and everybody who looks at this, if this passes the way it is, will say: Well, how come the word "coerce" is in the introductory section applying to everybody who's invited or coerced over the age of 18, but the word "coerce" is not in when it comes to people under the age of 18? The very purpose for which the amendment was made has been negated. Somebody sitting in an adjudicative chair in the court is going to have to make a decision as to whether or not the word "coerce" has a specific meaning and why it is left out for young people.
I suppose somebody is going to be smart enough to go back to the proceedings of this committee and read the real reason, and that is that the House of Commons made an error. They made a tragic error when they did not, as we do here, signify the line and the sentence in which the impugned word has to be included.
The Chair: Can I jump in here?
Senator Baker: Yes.
The Chair: You have yet to do that for your amendment. Could you do that?
Senator Baker: Oh, yes, I should have done that at the beginning of the amendment. Sorry about that, Mr. Chairman.
I move that Bill C-394 be amended in clause 9, on page 2, by replacing line 33 with the following:
"solicited, encouraged, coerced or invited is under 18".
For all of the aforementioned reasons, which I won't repeat, I'm making this particular amendment. It's for all the aforementioned reasons that I gave a moment ago, the contrast of having it in this portion of the paragraph but not applying to the mandatory minimum sentence provision of encouraging somebody under the age of 18.
Again, Mr. Chairman, I want to put on the record the sloppy manner in which the House of Commons standing committee introduces and passes amendments in the other place. It is indeed unfortunate that it leads to these kinds of errors and that there was no oversight after the committee presented its report at report stage. Not one person mentioned the fact of where this word "coerce" had ended up, but they all believed that it was in the section of "persons under the age of 18."
I make the final point that when you put it in one section, the exact same words, and you include the word "coerce" for all those above 18, and you don't include that same word "coerce" but you include the other indicia, the other requirements in that same portion, that same descriptive paragraph, then the person adjudicating the matter is going to have serious problems, and somebody prosecuting is going to have serious problems if, in fact, they're aiming at the mandatory minimum sentence for the commission of the offence.
Senator Plett: Thank you, chair. Again, I would like to commend and compliment Senators Baker and Joyal. One of the reasons I enjoy being on this committee as much as I do is every committee meeting I have the opportunity of learning more from people like Senators Baker and Joyal and the studies they do and the arguments they make. I appreciate that. I can't disagree with any of the arguments Senator Baker has made here today, certainly, as far as our committees here do. I brag on this wherever I go, that we do a better job here than they do on the other side.
But I would like again to ask our witness a question, if I could. Would it be fair, for example, that if an accused tries to recruit a young teenager by using words such as "you are going to join our gang or else you will be killed or beaten," that the Crown will argue that the teenager in this case was encouraged, albeit through threats, and, therefore, cases of coercion could likely be captured in the following elements, such as recruitment, solicitation, encouragement or invitation?
Mr. Taylor: I think that's a fair observation. Certainly, the amendment, as was passed, makes clear that coercion is an act element of the offence. Ultimately, the challenge is what does "coercion" really mean. We have two places in the Criminal Code where "coercion" is found. Right now, one is in our human trafficking offence in section 279 and one is in our aggravated child pimping provision.
When I think about coercion, it doesn't really have a fixed legal meaning. We do have the Supreme Court in the context of freedom of religion describing coercion as not only blatant forms of compulsion, such as direct commands to act or refrain from acting on pain of sanction, but it also includes forms of control which determine or limit alternative courses of action. If I were to strip that down, I think it is the means used to obtain a purpose, so you're engaging in an act, inviting, soliciting or recruiting through particular coercive means in order to cause this person to join a criminal organization.
Certainly, I think that's open to the prosecutor to argue that, in fact, the other act elements would address the conduct that the House of Commons committee was concerned about as well as Minister Swan.
I also think it's important to note that coercive acts, such as the examples you described, might also be subject to other criminal offences, such as uttering threats, depending on the coercion, forcible confinement, assault, things of that nature. There are other tools also available to prosecutors to address that behaviour in addition to making the argument that you've laid out here.
Senator Plett: Would it be fair to say that the absence of the word "coerce" in paragraph (a) will not create a gap in law, then, and it will depend on the facts provided by the Crown, and it will be a case-by-case assessment? Further to that, would this also be something that could be amended quite easily down the road if we would append an observation again to our report, and we could amend this in the future?
Mr. Taylor: Yes, I agree with all of that. I think it would be assessed on a case-by-case basis. Again, subject to the comments I made earlier, it's largely dependent on the government's desire to move an amendment forward or another private member bill to address it, but certainly I think it would be consistent with the intention of the House of Commons when they proposed that original amendment.
Senator Plett: I will then simply say, Mr. Chair, that the arguments I used on the first amendment would apply here as well. It is important that this legislation gets moved through the Senate as quickly as possible so that we can defend and protect our vulnerable youth right across this great country.
Senator Joyal: I will make a very quick comment because if you read subsection (a) in clause 9, it links the minimum sentence to a very specific action: recruitment, solicited — we know what "solicited" means — encourage — when you encourage somebody to do something, you give motivation to the person, and then there is "invite." "Invite" is you make a proposal: "I invite you to join this group or this association."
"Coerce" implies another ill intent. When you coerce somebody, you do something wrong; you put a threat to somebody. You agitate so that if the person doesn't do something, there will be some kind of retribution. In my opinion, not to put it there, you reduce the impact of the minimum punishment. The minimum punishment, in my opinion, is much more due in the context of coercion than it might be in just the context of invitation. With invitation, there is no psychological violence against the person, but coercion has a psychological violence on the person. If you look at the way the court has interpreted in relation to coercion, the court has always recognized that element.
If we are to legislate a minimum punishment, in my opinion it is much more deserved in the case of coercion than just the case of a simple invitation to join a criminal organization or whatever association it might be. That's why, as my colleague Senator Baker and the Minister of Justice for Manitoba have said, in my opinion, it is justified to be there. If there is a place it should be, it is linked to the minimum sentence because it's a bigger crime, in my view, to coerce somebody than to invite somebody.
I don't dispute the way that the other place legislates. They do what they think fits according to their own priority, but it seems to me if we are to exercise our role of sober second thought in reference to legislation — that's why we are here — the system must work so that if we identify a gap in the legislation, there must be a way in the other place to give way to the gap we've identified and the correction we've been suggesting.
That's why, Mr. Chair, if Senator Plett is right, I think we should make a recommendation, and this is one that we should make. In fact, if we do our job here in identifying what should be improved, the system in the other place should receive the ball and be in a position to act on it. If the honourable senator is proposing to make an observation, that should also be part of the observation.
The Chair: Thank you, and that's indicated. We will have that opportunity. Is there any further discussion on the amendment before us?
Senator Baker: Yes, before the vote is taken, I want to put on the record the excellent job done by Mr. Matthew Taylor in addressing this amendment and the previous amendment. He is certainly a credit to the Department of Justice. Thank you.
The Chair: Ready for the vote? Is it your pleasure, honourable senators, to adopt the motion in amendment?
Some Hon. Senators: Agreed.
Some Hon. Senators: No.
The Chair: The motion in amendment is defeated.
Shall clause 9 carry?
Some Hon. Senators: Agreed.
Senator Joyal: On division.
The Chair: Carried, on division.
Shall clause 10 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 11 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 12 carry?
Hon. Senators: Agreed.
The Chair: Carried. Shall clause 13 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 14 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 15 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 16 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 17 carry?
Hon. Senators: Agreed.
The Chair: Shall the title carry?
Hon. Senators: Agreed.
The Chair: Shall the bill carry?
Some Hon. Senators: Agreed.
Senator Joyal: On division.
The Chair: Carried, on division.
Does the committee wish to append observations to the report?
Senator Plett: Thank you, chair. You will tell me what the procedure here is, I'm sure, but I do have two observations on the two issues that we have dealt with and I think the clerk has copies. If you would, please distribute those copies.
Would you like me to read these observations?
The Chair: Yes, read them into the record.
Senator Plett: Thank you. The first observation would deal with the word "coerce" and the observation would be that the new recruitment offence being added by Bill C-394 refers to a person who coerces a person to join a criminal organization.
In the penalty section, however, there is no mention of someone being "coerced." The committee believes, therefore, that the word "coerced" should be added to the new section 467.111(a) of the Criminal Code.
I would make that motion, if that's what you need.
The Chair: Do you want to read the second one? Then we can have general discussion.
Senator Plett: Yes.
Section 196(5) of the Criminal Code governs extensions of the period within which individuals must be notified that their private communications have been intercepted, when the relevant offence is one of the specified offences, including the criminal organization offences set out at sections 467.11, 467.12, and 467.13 of the Criminal Code. Clause 6 of Bill C-394 amends section 196(5) of the Criminal Code by adding the proposed new criminal organization offence under section 467.111. Under section 196.1(5) of the Criminal Code, the notification period for certain emergency interceptions may also be extended. Section 196.1(5) refers to sections 467.11, 467.12, and 467.13 of the Criminal Code, but not to section 467.111. The committee believes that there should be consistency in the Criminal Code between these two sections.
The Chair: Do you want to add any comments to that?
Senator Plett: Again, chair, I have supported what has been argued here from the beginning, and that we need consistency in this legislation. I think Mr. Gill was equally agreeable that we need to be consistent in all legislation we pass. This committee has done itself proud in bringing out these inconsistencies and, therefore, I believe we should notify the people in the other place of the inconsistencies that this has brought forward but, again, as I've clearly indicated before, not to in any way slow down or delay bringing this very important legislation into law. Those would really be my only comments.
Senator Joyal: As I suggested earlier, one of the key arguments of honourable senators in relation to refusing those two amendments is about the uncertainty that this bill would face if it would be returned to the House of Commons, if the Senate would have an opportunity to amend it consequently.
I think it would be fair to express that we are concerned about the procedure involving the other place when a bill is amended and the sponsor is no longer in a position to receive the bill as amended by the Senate. We have to respect the authority of the other place to manage their business the way they see fit, but on the other hand, if the two houses of Parliament are involved with the adoption of legislation, the two procedures have to be in sync.
That's why I think we should make a general comment without negating or praising the procedure. We just consider that it is their problem.
The Chair: So you're suggesting a third observation?
Senator Joyal: Yes, that's what I would say, in the most neutral terms, because if there is somebody in the Senate who respects the other place in the way they think they want to manage their business in terms of parliamentary issues, we are certainly a humble servant. But on the other hand, we cannot consider that there is not a problem.
The Chair: In carrying on this conversation, could you draft something briefly?
Senator Joyal: Yes. It will just be a sentence. I'll try to write it now.
The Chair: Senator Baker, did you have something?
Senator Baker: Yes. As far as the report and the observations are concerned, I want to express full support to the comments of Senator Plett concerning this matter, not in other comments that have been made during the committee, but certainly concerning this, and to congratulate him and the Conservative members for the wording of this observation.
It's very clear, it's not complicated and you can easily understand it. It expresses things as they should be expressed, and I support his motion wholeheartedly. We await Senator Joyal's sentence that he will be proposing. Thank you.
Senator Plett: I suppose I want to reserve my right to support or oppose this until after Senator Joyal has finished. However, as a general observation, this meeting has been in public and is being recorded, so our frustrations, to some extent, are going to be on the record. I think the observation that Senator Joyal is raising is a general observation that is not specific to this bill.
For that reason, I'm wondering whether this is the appropriate place to put that observation forward as opposed to finding some mechanism of letting the other place know of Senator Joyal's and, indeed the committee's, concerns as opposed to putting that general observation into a specific piece of legislation.
I have some reservations in that regard.
Senator Batters: I was going to express a similar concern. I'll reserve judgment until I see what I'm sure will be the very capably worded observation written by Senator Joyal. I'm a little concerned that it could be stepping on toes and looking like we're trying to interfere in the business of the other place.
The Chair: How are you doing, Senator Joyal?
Senator Joyal: I'm just on the two last words.
Senator Baker: Mr. Chairman, the problem that appears evident in the other place in dealing with amendments — perhaps we could take further steps down this path, because in the past it has led to — and I'm thinking just off the top of my head — three or four examples that we've received in the past.
It was only recently that the Banking Committee received a bill — yes, it was 500 pages long — concerning the Income Tax Act. But in that particular bill, nine pages were obviously overlooked by the House of Commons. They contained a provision that they didn't know was there and that everybody in the Commons objected to, but they miss it because of their way of calling the numbers. In a large bill, the numbers are called in the House of Commons standing committee by a question such as this: "Shall clauses 10 to 50 carry? Shall clauses 50 to 80 carry?" Hidden in those clauses were those nine pages that nobody read in the House of Commons.
It caused us in the Senate to carry out what I call our "gatekeeper function " of saying, "No, this bill can't pass." Why? Because the members of the House of Commons don't want it to pass. Yet it came before our Banking Committee. We had to leave it on the Order Paper until the session concluded, and it stayed there. It never did. The entire bill had to be stopped because of this error that was made during the normal process of approving clauses in the standing committees of the House of Commons.
I think the problem — it's fine: You've got to have a Senate; if the Senate weren't here, then members of the House of Commons would be left with no recourse or redress for what they agreed to and voted on unanimously in the other place. So you have to have the Senate in order to provide that gatekeeper function to stop a piece of legislation unanimously approved in the other place.
Here we see in this particular piece of legislation that we are making an observation. It's good we are making the observation, because as Senator Plett said, it's inherent in what he's saying here that we're not too happy with the way the word was put in. There was an obvious error made in the other place. In these circumstances, it is such that the mover of the motion cannot allow the bill to be returned to the Commons because it would mean the end of the bill, in his opinion, given the circumstances outlined by the chair.
And I think the chair is correct in that he agrees with me that you can move a motion to change the sponsor. But what the chair inserted was that it has to be done unanimously. I think he's right. I wouldn't want to say that; it sort of diminishes my point. It requires unanimous consent to change the sponsor and therein lies the problem: If you have one — I shouldn't say "rogue member" — but if you have one person objecting, then the sponsor of the bill cannot change and then the bill would die.
It may be worthwhile, depending upon the wording that Senator Joyal comes up with, to vote on whether or not to provide a sentence that further exemplifies our discontent with the procedural anomalies in the other place.
The Chair: It looks like this is going to be a lengthy sentence. Senator Batters, did you ask for the floor?
Senator Batters: No.
The Chair: I'll turn to floor over to Senator Joyal.
Senator Joyal: I'll give it to you, Mr. Chair. I'm just changing my phraseology.
Senator Baker: Let the record show that Senator Doyle said, "It must be in French as well."
Senator Joyal: May I read it, Mr. Chair?
The Chair: Yes, please.
Senator Joyal: You have the text in front of you:
The committee is concerned that when a private member's bill is amended by the Senate and returned to the other place, that the procedures allow for an effective reception of the bill as amended when the original sponsor is no longer in position to move its adoption.
I will read it again:
The committee is concerned that when a private member's bill is amended by the Senate and returned to the other place, that the procedures allow for an effective reception of the bill as amended when the original sponsor is no longer in position to move its adoption.
Senator Plett: I agree with the observation, so I guess my argument here is going to be a little weak. That is a very general observation that should apply to all legislation that comes here. I guess I will yield to the knowledge of people here who are far more experienced than I am as to whether or not we could not do this as a general statement of some kind to the other place; namely, that this is a general concern this committee has.
We deal with all legislation that is part of the Criminal Code. So we are either going to have to append that observation to every piece of private member's legislation that comes through here, or we make a general comment that we do that.
I will certainly not vehemently oppose this, because I do agree with the intent of what Senator Joyal is doing. Again, though, I'm wondering if there isn't another mechanism that we could use to bring that in.
Senator Batters: What about instead of including it as an observation to this particular bill we have the chair of our committee write to the Procedures and House Affairs Committee of the House of Commons, or whoever would be in charge of private members' bills, to bring that up and ask for options dealing with that — expressing the concern in that way — which might be a more effective way?
Senator Baker: While Senator Joyal was reading the suggested wording, I noticed Senator McIntyre — who was a chair for 25 years and who has written many decisions — with his head in the air. He was saying something. I looked at the wording and I could see what he was thinking. Let me repeat what the wording says:
The committee is concerned that when a private member's bill is amended by the Senate and returned to the other place, that the procedure . . . .
It should be "does not allow." The "does not" has to be put in there. Does not allow for the effective reception of the bill as amended when the original sponsor is no more in a position to move its adoption. So before Senator McIntyre brought that error to our attention, I decided to do it.
Senator Joyal: It's a joint effort.
Senator McIntyre: Speaking of procedure, I recall vividly before review boards the Criminal Code makes it very clear that the procedure must be as informal a manner as possible. In this particular case, I don't see a problem with a general observation. It's not an amendment; it's an observation, and I also agree with Senator Plett's remarks that it's sort of limited perhaps to this bill; but on the other hand, I think it's a message here that we're sending to the other place, and I would certainly support this observation.
The Chair: I try not to take positions on anything before the committee, but I see nothing damaging with respect to incorporating this as an observation. Also, if the committee wishes, following up on Senator Batters' suggestion of writing to procedural affairs in the house with a copy to the house leader in the other place with a little more detail with respect to the specific legislation we were dealing with and the problems we encountered and asking them to consider and drawing their attention to the observation we've included in the committee report.
Senator Joyal: I think we share the intention on both sides in relation to that. It's just fair for the member in the other place who has spent some effort and beaten the bushes and rallied support and went through all the steps in the House of Commons, and so on, on a very serious issue. Not one of us will dispute that if we want to make sure that the end product is the best one possible that the procedure would allow that. It seems to me it's reasonable to contend that. That's why, either in the form of an observation or in the form of a formal letter or both, that could be.
In my opinion, and again I want to restate that for the sake of everybody listening, we have to respect what they do in the other place as much as we expect that they will respect what we do on our own terms. On the other hand, both have to work in sync at the point in time with the end result because we all deal with the same legislation at the end of it. That's essentially what I think the objective is here.
Senator Plett: As I said, I will yield to the much better legal minds than mine here on this. I will in the spirit of cooperation certainly support that, but again, I would also like to support what Senator Batters has suggested, that we do both, so that maybe the next time we don't have to append this same observation again. In the spirit of cooperation, I will support that.
The Chair: I think we're agreed with that. That's good. Is it agreed that all three of these draft observations be adopted?
Hon. Senators: Agreed.
The Chair: Is it agreed that steering approve the final version, because we may have to smooth some of this out?
Hon. Senators: Agreed.
The Chair: Is it agreed that I report this bill with observations to the Senate?
Hon. Senators: Agreed.
The Chair: Agreed. Very good. We will suspend for a few moments, and then we'll deal with the Miscellaneous Statute Law Amendment Act.
We will begin our study of the Miscellaneous Statute Amendment Law proposal that was tabled in the Senate on May 15 of this year and referred to this committee on Wednesday, May 28. The Miscellaneous Statute Law Amendment Program was initiated in 1975 to allow for minor non-controversial amendments to federal statutes in a non-omnibus bill, and since then 10 sets of proposals have been introduced and 10 acts have been passed. The last one was dealt with in 2001. Requests for amendments are forwarded to the legislation section of Justice Canada, primarily by federal departments and agencies, although anyone can propose an amendment if it meets the program's criteria.
To be included, the proposed amendments must meet certain criteria. They must not be controversial, not involve the spending of public funding, not prejudicially affect the rights of persons, not create a new offence and not subject a new class of persons to an existing offence.
The proposals are then tabled in the Senate and the House of Commons and referred to the Standing Senate Committee on Legal and Constitutional Affairs and the House of Commons Standing Committee on Justice and Human Rights for further review. If any member of either committee objects to a proposal for any reason whatsoever that proposal is withdrawn.
After the two committees have studied the proposals, a Miscellaneous Statute Law Amendment bill is prepared, omitting any clauses to which a member of either committee objected. It is generally expected that this bill will receive speedy passage through Parliament, since any potentially offensive clauses have been removed.
To assist us with this review, we have officials from Justice Canada with us today. I would ask you to welcome them: Philippe Hallée, Chief Legislative Counsel, Legislative Services Branch; Claudette Rondeau, Legislative Counsel, Legislation Section; and Monica Donnelly, Legislative Counsel, Legislation Section.
I believe Mr. Hallée has an opening statement.
Philippe Hallée, Chief Legislative Counsel, Legislative Services Branch, Justice Canada: Honourable senators, as a matter of fact, you very eloquently described what I was about to describe. Perhaps I can describe the document that you have before you very succinctly. This document contains proposed amendments to 80 acts, and the proposed amendments are organized in three parts.
Part 1 contains the proposed amendment to several acts, essentially organized in alphabetical order, and Part 2 contains one clause that makes the same terminology change to several acts by means of a pinpoint amendment that has to do with the replacement of Newfoundland by "Newfoundland and Labrador."
Part 3 contains the coordinating amendments, that is, amendments that serve to coordinate the effects of some of the proposed amendments with bills currently before Parliament or with provisions of acts that have been assented to but are not yet in force.
Following the proposed amendments is a section with the heading "Explanatory Notes," which contains descriptive notes for each proposed amendment, and descriptive notes provide short explanations for the reasons for the proposed amendments, so they have a little bit more elaboration on the purpose of the replacement.
[Translation]
The proposed amendments in the document are varied. They correct grammatical errors, spelling and terminology, typographical errors, errors in references, the use of outmoded terms, and discrepancies between the French and English versions.
Certain proposals update the names of provinces and territories. For instance, several proposals update the name of the province of Newfoundland to Newfoundland and Labrador, following the 2001 constitutional amendment to that effect.
Other proposals correct the name of certain courts in federal acts to adapt them to organizational changes. In addition, certain proposed amendments ensure the use of non-sexist terms in the English version: for instance certain instances of "chairman" are replaced by the more neutral term "chairperson."
The proposed amendments document also contains provisions repealing certain legislative provisions that today are null and void: for instance, provisions dealing with veterans of the South African War of 1899-1902, also known as the "Boer War." There are no longer any beneficiaries for these provisions.
Finally, some of the proposed amendments were also the subject of comments from the Standing Committee on the Scrutiny of Regulations. Those amendments will in certain cases resolve issues raised by that committee.
[English]
Those are my brief introductory remarks. My colleagues and I will be pleased to answer any questions.
The Chair: You talked about any proposal can be withdrawn. Can anything be added to the bill? Is that realistic or not?
Mr. Hallée: It might prove a little bit difficult practically because the proposals are, as you mentioned, introduced in both houses at the same time, so there would have to be a bit of coordination there with the other place. That's one element.
The second element is that usually this is the result of a fairly thorough process by which department officials go through the proposals step-by-step to make sure that they fit with the criteria that you've set out in your introductory remarks.
In principle, this would be possible, but from a practical point of view, a little bit more challenging perhaps to coordinate with the other place.
The Chair: I only raise that because it did come up in the statutory instruments committee today with respect to a number of issues that were not contained here, so we wanted to raise it with you, at least, to see if the process is viable or not with respect to this. We haven't had a detailed conversation surrounding the individual matters, but at least we have from your perspective that it's possible but challenging, to say the least.
Mr. Hallée: I think it's essentially a matter of coordination with the other place, but we would be happy to take note of those proposals and to look into them and get back to this committee.
Senator Batters: Because we've discussed this type of statute before, in the Standing Joint Committee for the Scrutiny of Regulations, I just wanted to ask for your comment.
From my reading of the very first page where it's talking about the background, it looks like this type of an amendment act has not been done for many years, like 13 years or something like that. I come from Saskatchewan, and it's something that we routinely did as part of our cleanup of different statutes and that sort of thing with the ministry of justice there.
I congratulate your department. I know that it's a lot of work but it's going to clean up a number of different statutes. Am I correct on that, that 13 years have gone by since the last one?
Mr. Hallée: It's a lot of time. You're correct, senator. Thank you for the compliment.
It has been a long time and a lot of work by a group of people, including these colleagues of mine, Claudette Rondeau and Monica Donnelly, who have worked very hard on those proposals. The management, I would say, of these proposals is also a little bit tricky because as we propose amendments, life happens, legislation gets passed and some of the legislation that has been introduced in Parliament had to deal with essentially some of the provisions being opened here in the proposals for amendment, so we had to coordinate. That's why I mentioned the coordinating amendments towards the end to make sure the end result of either process, this one or the amendments through bills of legislation, ultimately results in the intentions of Parliament, so there is no confusion there.
We are very proud of making sure that we have the right drafting standards applied consistently through the statute book.
Senator Baker: The last time this was done, as Senator Batters said, in 2001, this committee recommended six or seven changes, I believe, and those matters were consequently dropped from the bill.
Now, could we receive the opinions of those people who have looked at this very carefully? As you've said, witness, both people, one to your right and one to your left, have been looking at this very carefully. Have they looked at these provisions to see if similar errors that this committee found in 2001 are not present in this particular piece of legislation we have before us?
Mr. Hallée: We may look into it. I don't know if they have. Just as a first comment, I think that if I'm not mistaken, those seven proposals were dropped because I think they were deemed to be a little bit controversial for either one of the committees. I think that's what it is. I don't know whether there has been any regard to that, particularly.
The process as it works generally is that the Department of Justice receives proposals by different departments responsible for each of those statutes, and then it's on that basis that we essentially look at them to see whether they actually fit the criteria. Quite frankly, I have to admit I don't know personally what those seven proposals that were rejected by the committee were exactly.
Monica Donnelly, Legislative Counsel, Legislation Section, Justice Canada: We could check to verify specifically. As indicated, it's based upon the request from different departments, and then we analyze it with the departments under the criteria, to make determinations. It's possible that in the last 13 years, while the criteria haven't changed, perhaps the analysis behind a provision might have changed. We would have to definitely look into that and check if any of the proposals that were dropped in 2001 were included.
Mr. Hallée: I would like to come back to you.
Senator Baker: It's your job, though, to vet the suggestions made by the departments. In your vetting procedure, you sit down with the department, you go over each one of these requirements, and you see whether or not it meets those particular requirements.
That's what was done in 2001, and we found seven errors. Can you say with some confidence that you vetted this according to the guidelines and that, in fact, nothing stands out or jumps out at you as being controversial or spending of public funds or prejudicially affecting the rights of persons or creates a new offence or class of persons?
Can you give us that assurance that, as far as you can see, it meets these criteria?
Mr. Hallée: I think we have. I think it was a rigorous process, senator, to go through all this, and many of the proposals have been rejected on the basis mainly of the potential for controversy. Controversy being a subjective concept, it's for the committees to reject those, but one thing we can commit to do is come back to you with information about whether those seven proposals that were rejected by the committee in 2001 are included in this one, but to answer your last question, I think there was a very rigorous process going through this. Most of the time, I think my colleagues would err on the side of caution, if anything, to make sure there are no controversial proposes submitted to this honourable house.
Senator Baker: I notice one provision here that repeats itself over and over. It's a reference to the Judicature Act of Prince Edward Island. I haven't read the Judicature Act of Prince Edward Island, but I have read a few from different provinces. The reference is to the trial division of the Supreme Court. It's not the Court of Queen's Bench in P.E.I. but the Supreme Court. The references to the Trial Division of the Supreme Court are being replaced by just Supreme Court. That's my understanding of reading it. I'm just wondering if there's any explanation for that, apart from some obvious reference problem, because the Supreme Court of P.E.I. and of other provinces is made up of the trial division, then the Court of Appeal and the Supreme Court judges adjudicate the family court, civil rules of procedure and so on.
But all judgments of the Supreme Court are recognized as of the Trial Division, unless you go to the appellate division. So why is the change being made from the Trial Division of the Supreme Court, which is what they're talking about here because it says "an appeal may be heard under this section in the province of Prince Edward Island before the Trial Division of the Supreme Court." That's right. That's true. You can't go to the Court of Appeal with an appeal. That's nonsense. You'd have to go to the trial division of the Supreme Court. So why is this change being made?
Claudette Rondeau, Legislative Counsel, Legislation Section, Justice Canada: I'll take this question. There was legislation passed in Prince Edward Island to reorganize the court, so it was a court with a Trial Division and an Appeal Division, as you said. It was reorganized so that there are two separate courts. The trial division is now known as the Supreme Court and the Supreme Court appeal division has been continued as what they call the Court of Appeal. That's one of the changes that were made to a number of acts.
The legislation was a few years ago. The new Judicature Act was passed in 2008, I believe.
Senator Baker: I see.
Ms. Rondeau: But if you look at the Judicature Act, it says —
Senator Baker: Supreme Court.
Ms. Rondeau: Yes. I believe sections 2 and 3 of that act.
Senator Baker: Yes. The only problem I have with that, recognizing that all judgments of the Supreme Court trial division, for Prince Edward Island it says Supreme Court and then Trial Division. Granted that's not trial division of the Supreme Court, so I understand the wording in the Judicature Act has been changed to eliminate the words of "Trial Division of the Supreme Court" and replaced with just "Supreme Court."
The Chair: Just to jump in here, today is an overview of the process and what the legislation involves. I don't think members have to feel an obligation to absorb the contents of this proposal in the next 15 minutes.
What will happen is the steering committee will look when we take this back, the analysts will go through this as well as the various parties and members, and we can have a more substantive discussion surrounding the contents of the proposed legislation at that point in time. I don't want anyone here to feel we have to pull out specifics here and put our witnesses on the spot today.
If you feel obligated or compelled to do that I won't cut you off, but I just want to reinforce what today is all about.
Senator Jaffer: Thank you for clarifying that.
I was wondering, especially in light of what the chair has said, if I understood you correctly. You said you have a guideline that you follow. Is this a guideline that you could share with us? Is it already here? Sorry, I haven't had a chance to look. Where is it?
Mr. Hallée: It's just on the cover of the document, the first page.
Senator Jaffer: Oh, yes, I saw that.
Mr. Hallée: That's what it is.
Senator Jaffer: I thought you had a separate document. This is the guideline you go by. The chair has clarified that we will get another chance to look at it. When we look at it, I wanted to have assurances from you that none of the spirit of the legislation has been changed, just something to make it clearer; is that correct?
Mr. Hallée: Absolutely. The essential criteria is that there's no substance brought into this. There has to be no additional spending of public money, no impact on the rights of individuals. It has to be non-controversial. That's one of the main amendments, the basket criteria, if you will. These are not meant to change the law but to clarify the expression of the law as many things may have occurred.
Senator Jaffer: Thank you for clarifying that. At the beginning of your statement you said this and I'm interested in how you define "non-controversial."
Mr. Hallée: There are many ways to define it, senator. I would say essentially that not dealing with substantive elements obviously is a criteria. There are some areas of the law that can be a bit more prone to heated debates, so I think those would probably not be submitted in those cases. We err on the side of caution so what we present to you is essentially to correct what should be the obvious or where there are pressing circumstances to rectify and clarify the law because there is an obvious mistake in there. I don't know if you want to add to that.
Ms. Rondeau: I was going to mention that the question has come up when the program was first created in 1975. I think it was the former minister, Otto Lang, who mentioned that the very essence of controversy is if one person objects to the proposed amendment. Someone may see it from a certain perspective and they may object, so then it's controversial and it would be dropped.
Senator Plett: What would not be controversial?
Mr. Hallée: Something nobody objects to.
The Chair: As I indicated earlier, the steering committee will look at how we go forward with this. We will certainly have more than enough time to consider the implications with respect to what's contained in the legislation. The analysts will be going through it with a microscope to make sure anything that can be cut will be cut.
We want to thank you all. I'm sure we will see you back here once again when we've completed our review and studies, and we will have questions at that point in time.
That concludes our business for today, members. The meeting is adjourned.
(The committee adjourned.)