Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue No. 62 - Evidence - May 15, 2019
OTTAWA, Wednesday, May 15, 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 3:17 p.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 clause-by-clause consideration of Bill C-75, An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts.
[English]
Before we move to clause-by-clause consideration I would like to seek your authorization, because I have received an important letter from the Minister of Justice. It contains appendices and annexes. In particular this letter is of some importance because it answers some of the questions that were raised around the table — and I am looking at Senator Dupuis, the deputy chair of the committee — in relation to gender-based analysis and in relation to other questions that were raised by honourable senators.
This letter, which contains six pages and many annexes, especially an analysis of sentences for certain groups of hybrid offences, is of very deep interest for everyone around the table. With your authorization, I would like to make sure that the letter is appended to the minutes of our meeting today. If it is possible, I’ll make sure to have it photocopied and circulated to honourable senators.
I am told that you would have already received it. So I’m looking on all sides of the table to be sure that you have that letter because it answers some of the queries that were put to the minister. Do you agree, honourable senators, that the letter be appended to the minutes of the committee?
Senator Batters: Are there any copies that we can have?
The Chair: I can make sure there are additional copies, but I’m told that it has been circulated.
Is it agreed?
Hon. Senators: Agreed.
The Chair: Honourable senators, as you know, the bill is a voluminous one and there are many clauses. I suggest we proceed the way we usually do with a complex bill.
[Translation]
Senator Boisvenu: Mr. Chair, may I speak? If all the members are in agreement, I would like to introduce a motion that Bill C-337 be examined at the end of our clause-by-clause consideration of Bill C-75.
For those watching at home, Bill C-337 was passed in the House of Commons nearly two years ago and has been before the Senate since that time. It is a bill that deals with the training provided to make judges aware of the problems associated with sexual assault against women, an issue that has been in the headlines in the civilian and Canadian Armed Forces media for several years.
Bill C-337 was sponsored in the other place by Ms. Ambrose. We made every possible effort to insert it among the government bills, but, as a result of tight deadlines, were unable to consider it. We now risk losing this bill, which I consider essential for sexual assault victims.
Once we have finished debate on Bill C-75, I move that the Standing Senate Committee on Legal and Constitutional Affairs give priority to the study of Bill C-337, consideration of which will require very few meetings. Thank you.
The Chair: Thank you for your proposal, senator. However, it is important to note that we also have an order from the Senate to report on the provisions of Bill C-97 before June 4, 2019. We must consider our duty to report to the Senate on June 4 between the moment when we complete our study of Bill C-75 and June 4 to report on the two budget measures that have been referred to this committee by order of the Senate.
[English]
That’s the only additional information I wanted to put on the table so that honourable senators understand that this is also a commitment of this committee to honour the instructions we received from the chamber.
[Translation]
Senator Dupuis: We agreed with the subcommittee to proceed with consideration of Bill C-97 since we must make our report to the Senate very soon. We have even selected witnesses. Consequently, we should immediately conduct that study after debating Bill C-75.
Senator Boisvenu, could we consider your motion once we have completed our work on Bill C-75? There is nothing urgent here. We are in no way required to set aside the notices of meeting to avoid delaying the study of Bill C-75 that we have begun. I propose that we return to it immediately after finishing debate on Bill C-75.
Senator Boisvenu: We have to hold a few more meetings to complete debate on Bill C-75. There are a lot of amendments. We have a lot to do on our side. We may not finish up today. I want us to inform the Senate that we will give priority to Bill C-337 once we have debated Bill C-75.
Senator Dupuis: How many amendments to Bill C-75 do the Conservatives want to move?
Senator Boisvenu: Several tens.
Senator Dupuis: All right. Is that fewer than 50 amendments or more than 70?
Senator Carignan: It depends on how the matter develops.
Senator Boisvenu: I have a few on the same subject. If we agree on an amendment and can apply it to the bill as a whole, we could resolve 10 or so at the same time.
Senator Dupuis: I was talking about today. We could have conducted our meeting as planned. We invited some people. We could do that at the end of this meeting.
Senator Boisvenu: Let’s say there are 30 to 50 amendments.
Senator Dupuis: Can we address this motion at the end of this meeting?
Senator Boisvenu: I would prefer to debate it immediately so we can reach a decision as soon as possible. It doesn’t matter whether we do it after today’s meeting or on Thursday; what’s important is that we immediately decide whether to consider Bill C-337 at the completion of our business. This debate goes back to last December. We tried to determine when to fit it in. This is May, and June is fast approaching. We may well lose this bill.
Senator Dupuis: The subcommittee looked at Bill C-337 for a number of months. We had agreed to move it forward quickly, at your request. Then we were obliged to delay it at your request. Now you want to bring it back today. We have a predefined agenda respecting Bill C-75. What’s preventing us from making a decision at 6:15 p.m. this evening instead of at 3:29?
Senator Boisvenu: I don’t mean to contradict you, senator. We were prepared to debate that bill in December. We set it aside as a result of government priorities. We were to study it in late January, but we came back in mid-February due to a number of setbacks. As far as I’m concerned, I never deliberately deferred Bill C-337. I would have been in complete agreement if the subcommittee had given it priority over all the others.
Senator Dalphond: I simply want to tell Senator Boisvenu that I support the idea of making the necessary arrangements with respect to Bill C-337 without undue delay. It’s an important piece of legislation. However, as Senator Dupuis said, we should immediately deal with Bill C-75. Several amendments have been introduced on our side. I understand that the other side claims it has 30 to 50 amendments. We should finish debate on Bill C-75 before deciding what to do with Bill C-337. We may have to schedule other meetings, extend meetings and so on. I think it’s premature.
I also have a concern regarding Bill C-78, which is an amendment to the Divorce Act. This is a major reform. The last one dates back nearly 30 years. I would like us to establish an overall picture before we vote. I agree with the idea of slipping it in between two files, but I’d like to know what timeline we’ve been given.
Senator Boisvenu: Senator Dalphond, You just added another constraint: Bill C-78. So we won’t be dealing with Bill C-337 until mid-June. Mr. Chair, I call for a vote.
The Chair: Senator Boisvenu has requested a vote.
Senator Pratte: I have a point of order, Mr. Chair. What is the text of the motion we’re voting on?
The Chair: It’s an oral motion that the committee proceed with the study of Bill C-337 after completing its study of Bill C-75. I believe that was the gist of the motion as I understood it.
Senator Boisvenu: Yes, that’s it.
[English]
Senator Batters: I want to voice my support for this particular motion of Senator Boisvenu’s.
Just to correct the translation and for the record, we are talking about Bill C-337, not Bill C-367. We have had Bill C-337 in the Senate for two years and in front of this particular committee for a year. Many of us thought we might get to this bill in the last few months, but because of the length of time that Bill C-58 took, including six clause-by-clause meetings — 16 hours of clause by clause — we weren’t able to fit in that particular bill before having to go on to Bill C-75.
I don’t think this bill would take a great deal of time. It’s certainly a very important bill. Many of us have seen the effects of what happens when this type of bill is not in effect in courtrooms in Canada. We want to make sure we can do our best to both provide the necessary education and to protect victims. I’m certainly supportive of this bill going forward as soon as possible and having this dealt with. Many Canadians are very concerned about this, and we want to make sure we don’t run out of time to deal with it.
Senator Sinclair: If it is in order, I would like to move that we adjourn the consideration of Senator Boisvenu’s motion until after consideration of Bill C-75 has been completed.
The Chair: Senator Boisvenu has already called the vote on his motion. I have Senator Gold, and after that I will proceed with the vote. After that we will come back to your proposal, Senator Sinclair.
Senator Gold: I also think it’s an important bill and I know it has been here for a long time, but I think we have obligations to the Senate. I agree that we should not be looking at this in isolation from all the other bills that are on our plate. I do note as well that many committees will have to find extra time, including time to sit, as we are now, while the Senate is still sitting. I would encourage all groups and caucuses to approach their leadership to get permission for us to sit those additional hours to make sure we have the time to add this to our already very heavy workload. But it’s irresponsible for us to change direction and priorities at this time. I will vote against this motion.
The Chair: The vote is called on the motion of Senator Boisvenu that the consideration or study of Bill C-337 be on the agenda of the committee immediately after the committee has completed its clause-by-clause consideration of Bill C-75.
All those in favour of the proposal please raise your hand.
All those opposed?
The motion is defeated.
Senator Sinclair, you are now in a position to make your proposal.
Senator Sinclair: If the motion is defeated, then it has been dealt with. My motion was to adjourn the consideration of this debate. I no longer need to move that motion.
The Chair: I understand the interest here, so to resolve the issue I suggest that members of the steering committee, Senator Dupuis, Senator Boisvenu and the chair, meet after we have completed our discussion today and seek a way to address the wish of Senator Boisvenu as is contained in his original proposal. We will find a time slot for the committee to deal with this and, of course, Bill C-97 that we have to report on. We are under instruction from the chamber and we can’t ignore it. We will see how to juggle those two objectives of dealing with Bill C-337 and Bill C-97 — in due time for Bill C-97, with Bill C-337 immediately following.
[Translation]
Senator Pratte: I’m thoroughly convinced that Bill C-337 is an important bill. Many of us worked very hard with the bill’s sponsor, Ms. Ambrose, to find common ground. I agree with you that the subcommittee can find a date on which we can consider this bill so we can adopt it before the end of the parliamentary session.
The Chair: That’s why I propose that we hold a meeting. I understand senators’ concerns and priorities regarding this bill. Thank you very much, honourable senators.
[English]
Is it agreed that the committee proceed to 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?
Hon. Senators: Agreed.
The Chair: Shall the title stand postponed?
Hon. Senators: Agreed.
The Chair: Is it agreed, with leave, that the clauses be grouped by 10 when it is appropriate? That is when, of course, the chair is not informed by honourable senators that there is an amendment?
I will then put to vote clauses 1 to 10, but I understand there is an amendment to clause 7 of the act.
So shall clauses 1 to 6 carry?
Hon. Senators: Agreed.
An Hon. Senator: On division.
The Chair: On division. I think we have an amendment on clause 7.
[Translation]
Senator Boisvenu, has the text of the amendments you are moving been distributed?
Senator Boisvenu: To save time, is it possible to distribute the first 10 amendments that I have in my possession?
The Chair: I would like to have the clerks’ help in sticking to the order of our agenda items. We are on clause 7 of the bill, on page 5. Clause 7 is a proposed amendment. Can you introduce it, Senator Boisvenu?
Senator Boisvenu: Yes. It is moved:
That Bill C-75 be amended in clause 7, on page 5, by replacing lines 32 to 35 with the following:
“ted is guilty of an indictable offence and liable to imprisonment for a term of not more than five years.”.
A series of criminal charges will now become hybrid summary or criminal charges. We have identified several. In our opinion, they should not be included in this group of clauses. The idea is in a way to relax the ground rules. I’m referring here to an incident that occurred a few years ago. I’m quoting the journalist’s words:
Quebecers and Ontarians . . . have forged Canadian passports with unnerving ease to bring people into the country illegally . . .
I won’t name the country. These were two men, 40 and 51 years old, who did it as though it were child’s play. In short, the purpose of this bill is to decriminalize this offence and to make it a hybrid offence. We oppose this measure and prefer the status quo.
Senator Dalphond: If I understand correctly, you want an offence that would normally be a hybrid offence not to be a hybrid offence.
Senator Boisvenu: Exactly.
Senator Dalphond: A person who makes a photocopy of a passport and is arrested while in possession of a photocopy may be prosecuted by indictment and be liable to a maximum sentence of five years. Doesn’t that undermine the idea that, when the crown is given the choice whether to prosecute by indictment or to proceed by summary conviction, depending on the degree of the person’s involvement in the network, the appropriate sentence is determined by the type of procedure selected? Consequently, under your amendment, only those who are most responsible would be prosecuted and those who collaborated would not. For example, the crown would simply close the file in the case of a person who made a photocopy.
Senator Boisvenu: Senator Dalphond, as a former judge, you know very well that all tourists make photocopies of their passports in the event they are robbed. The reference here is to possession of a false document.
Senator Dalphond: Yes, absolutely.
Senator Boisvenu: When I make a photocopy of my passport, it isn’t a forged document. I don’t think a judge would consider that an indictable offence. I’m referring here to people who —
Senator Dalphond: I’m talking about a forged passport here. Many people are involved in the forgery and use of forged passports. They aren’t all involved to the same degree. That’s the gist of my comment.
Senator Boisvenu: Obviously.
Senator Carignan: Then that will have an impact on sentencing, on the seriousness, on the degree of involvement and on all the elements that are viewed as aggravating or mitigating factors. The maximum sentence proposed is five years. However, in the situation Senator Dalphond mentioned, it’s clear that person wouldn’t be sentenced to a term of five years. I don’t think the amendment excludes the judge’s discretion in determining appropriate sentences.
Senator Dalphond: I’d like to ask my colleague a question.
If you’re prosecuted by criminal indictment, don’t you have a right to make certain choices so you can be judged by a judge of a certain class or by another judge and so on? Does an individual who pleads guilty to a summary offence have no choice? Are you saying that a provincial court judge has exclusive jurisdiction?
Senator Carignan: What difference does that make?
Senator Dalphond: It determines whether proceedings are shorter or longer and whether the system wastes resources on matters that don’t warrant that.
Senator Carignan: The purpose of the amendment is to establish a maximum of five years and to make a proportionate assessment. If the government intends to make sentences as short as possible, rather than establish offences and convictions that are deterrents and that do the job, then let’s say so and toss the Criminal Code into the wastebasket and reduce it to its simplest expression.
Some offences have been identified — serious offences — and the offenders must be properly punished. That doesn’t undermine the judge’s discretion; that’s not a minimum sentence, but rather a maximum sentence.
[English]
Senator Gold: I suspect that what I’m about to say will apply to many of the amendments to come, so I undertake to say it only once.
The government made a decision, for a number of reasons, to introduce the hybridization, and this clearly goes against one of the central objectives of this bill. More importantly, we heard testimony before this committee that, notwithstanding the hybridization, it would not and should not affect the sentences that would be meted out by the judge exercising his or her discretion, given all the circumstances.
Moreover, the letter to which you referred at the beginning, chair, admittedly not on this particular article of the code, but examples were provided in many other areas which show that, in fact, when you look at the range of offences meted out under what are now purely indictable offences, they fall within a broad range depending on the circumstances.
I will vote against this amendment and the others because I think it runs counter to the objective of the law and it’s not necessary to make sure the proper and appropriate penalties and sanctions are imposed by the judge in their particular circumstances.
[Translation]
Senator Boisvenu: The process involved in Bill C-75 is, first, to address the problems caused by backlogs in our law courts and to have an impact on those backlogs. I don’t think the aim of Bill C-75 is to shorten the sentences provided for under the Criminal Code. We really want to ensure that proceedings are as efficient as possible.
We prefer to maintain the status quo for a number of them. It’s up to the government to demonstrate the impact of those offences, which would become hybrid offences, on reducing delays. I invite you to demonstrate that for each of the cases we’re going to raise.
We’ve identified a number of cases that shouldn’t be touched because they have a criminal impact. However, if you think that including this hybrid offence would have a positive impact on delays and would make the process more efficient, then it’s up to you to prove that.
The Chair: Thank you, senator.
That concludes comments on the amendment moved by Senator Boisvenu.
[English]
All those in favour of the amendment as introduced by Senator Boisvenu, please raise your hand.
All those opposed?
The amendment is defeated.
Shall clauses 7 to 10 carry?
Some Hon. Senators: On division.
The Chair: On division. Thank you.
Shall clauses 11 to 20 carry? Agreed, honourable senators? I have to hear it on both sides in a way that I pay due attention to.
[Translation]
I requested a vote on clauses 11 to 20 of the bill.
Senator Boisvenu: Yes, pardon me; I’m in a bit of a daze.
[English]
The Chair: According to my information, there is no amendment.
Senator Boisvenu: No amendment.
The Chair: Shall clauses 11 to 20 carry?
Senator Boisvenu: On division.
The Chair: On division.
Shall clauses 21 to 30 carry? The chair has been informed that no amendments have been received by the clerk.
Some Hon. Senators: On division.
The Chair: On division.
Shall clauses 31 to 34 carry?
Some Hon. Senators: On division.
The Chair: The chair has been informed that there is an amendment on clause 35. Could you make sure everyone has the amendment? It’s an amendment that has been introduced by Senator Boisvenu.
[Translation]
Senator Boisvenu: It’s in the same spirit.
[English]
The Chair: Could you introduce it, senator, formally on the table, please?
[Translation]
Pardon me; first, I’m going to state it clearly to make it easier for everyone to follow our work. This is amendment CPC-35.12.
Senator Boisvenu: So it is moved:
That Bill C-75 be amended in clause 35, on page 12, by replacing lines 22 to 25 with the following:
“of an indictable offence and liable to imprisonment for a term of not more than five years.”.
The reference here is to breach of trust by a public officer. We’ve had scandals in Quebec in recent years; you’ll remember the Charbonneau commission. We know that very few of the people involved in those abuses were convicted and that the convictions were exemplary in some cases and relatively minor in others.
To our mind, reducing this offence to a hybrid offence sends a message that doesn’t reflect its seriousness. We therefore prefer that it remain a strictly criminal offence.
[English]
The Chair: Any comments on the proposal of Senator Boisvenu?
[Translation]
Senator Dalphond: I think Senator Gold’s remarks and those I made earlier also apply. I have nothing to say that bears repeating.
[English]
The Chair: Any other intervention before I call the vote on the amendment?
Shall the amendment to clause 35, on page 12, replacing lines 22 to 25, be carried? All those in favour, please raise your hands.
All those opposed?
Thank you, honourable senators. The amendment is defeated.
Shall clause 35 carry?
Some Hon. Senators: On division.
The Chair: On division.
Clause 36, I think there is also an amendment. Senator Boisvenu, if you can give me the amendment, I will identify it.
Senator Boisvenu: We have a few on that clause.
The Chair: It is the amendment that is identified on the upper right, as CPC-36.12. Do you have it, honourable senators?
Senator Batters: This is the one dealing with influencing a municipal official; correct?
The Chair: Yes.
Senator Batters: Thank you. On this particular one, this amendment deals with a reclassification of what is again currently an indictable offence: influencing a municipal official. We all may know or have our own stories of these sorts of situations happening. There was a story about SNC executives bribing local officials involving a $1.3-billion Montreal super hospital.
Some of us might also recall the case of former Liberal MP Paul Bonwick’s consulting work for companies doing business with the town of Collingwood, Ontario, where his sister Sandra Cooper was mayor.
In that case, Mr. Bonwick’s company Green Leaf Distribution earned a 6.5 per cent cut of a $12.4 million construction contract that he allegedly brokered with the Town of Collingwood in 2012.
In the documents filed in 2014, investigators alleged that Mr. Bonwick’s role was kept secret from council and that the payment to his company was:
. . . shrouded in various layers of secrecy and is evidence of fraudulent activity — to which the Town of Collingwood is the victim.
I just wanted to give a bit of context so that it’s not just numbers, it’s not just a few words, but we actually understand the types of offences where these sorts of things can apply. I think we would all agree that that type of behaviour is definitely unacceptable. I move that that particular offence of influencing municipal officials should remain an indictable offence and not be classified as a hybrid offence.
The Chair: Would you move the amendment directly?
Senator Batters: I’m sorry, yes.
The Chair: I let you give your presentation, but I should have invited you to introduce the amendment formally.
Senator Batters: Yes. I move:
That Bill C-75 be amended in clause 36, on page 12, by replacing lines 31 and 32 with the following:
“five years who directly or indirectly gives, offers or”.
The Chair: Thank you, honourable senator.
Any intervention on the amendment? Seeing no intervention, then I will call the vote.
All those in favour of the amendment as introduced by Honourable Senator Batters, please raise your hand.
All those opposed?
The amendment is defeated.
Is clause 36 carried?
Some Hon. Senators: On division.
The Chair: On division.
I see no amendments up to clause 43. Shall clauses 37 to 42 carry?
Some Hon. Senators: On division.
The Chair: On division.
On clause 43, I see an amendment. In your pile of amendments, it’s identified on the upper right by CPC-43.15.
[Translation]
It’s an amendment to clause 43 of the bill, on page 15. Would you introduce the amendment, please, Senator Boisvenu?
Senator Boisvenu: It is moved:
That Bill C-75 be amended in clause 43, on page 15, by replacing lines 3 to 6 with the following:
“obstruct, pervert or defeat the course of justice is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years.”.
So we’re still in the area of offences related to affidavits.
The Chair: This is about obstruction of justice.
Senator Boisvenu: Exactly. We heard testimony during our study of Bill C-75 to the effect that it was a serious offence, and we saw it in certain trials. When we intervene in this way by classifying this type of offence as a hybrid offence, we see that has the effect of reducing the significance of the offence.
[English]
Senator Batters: Yes, yet another amendment dealing with reclassification of what is currently only an indictable offence under the Criminal Code and which Bill C-75 will make into a hybrid offence. We’re dealing here with the serious offence of obstructing justice. We’ve heard much in the media about this phrase over the last number of months. Canadians will not appreciate that we consider this particular offence of obstructing justice to potentially be one that is dealt with as a less serious offence.
What we’re dealing with here is trying to bribe a judge, lawyer, peace officer, court official or witness. All of those things could constitute obstruction of justice. For example, giving someone money to stay away from a trial, to not be a witness, or to be a witness but to give false testimony — all of those things could result in an obstruction-of-justice charge. Paying a judge, a juror or a police officer would be an obstruction-of-justice charge. There doesn’t even have to be money involved. You could try to affect a court result by intimidating a witness through the threat of physical violence or to someone who is in a relationship with a witness.
There is a notorious B.C. case, R. v. Gill, where it was discovered that a juror in Peter Gill’s murder trial was conducting an intimate relationship with him during his trial. That juror, Gillian Guess, was charged with obstruction, found guilty and sentenced to 18 months in jail.
Justice is at the heart of our democracy. We should be taking this very seriously. In my mind, obstructing justice is serious and has to remain an indictable offence.
Senator Dalphond: To comment briefly on what was just said, we expose why we think hybridization is a plus for the system. It broadens the net of those who can be charged. It also gives the opportunity to the Crown and the judge to mete out the proper sentencing process.
Under this proposal, the juror in the case just referenced faced an indictable offence. She was exposed to a possible ten years. She could choose a jury trial; she could opt to have a trial before a provincial judge or a Superior Court judge alone. All those things come at a price which does not make the system more effective. It just ensures that fewer people would be caught in the net, so I oppose that amendment.
[Translation]
Senator Boisvenu: I’m thinking of the prosecutors. We’re sending what I think is an unacceptable message to prosecutors, who do a tremendous job in our justice system, when we decide to make an offence a hybrid offence and, strictly from an assessment standpoint, assign it a lower status than that of a criminal act. I don’t think that’s a highly motivating message for our knights of justice.
The Chair: Thank you, senator.
[English]
Hearing no other intervention, I will call the question.
Shall the amendment as introduced by Senator Boisvenu carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: No.
The Chair: All those in favour, please raise your hand.
All those opposed?
The amendment is defeated.
Shall clauses 43 to 45 carry?
Some Hon. Senators: On division.
The Chair: On division. Thank you, senator.
[Translation]
We also have an amendment to clause 46 of the bill, again on page 15. I believe it’s the one titled CPC-46.15.
[English]
All honourable senators have copies of the amendment. I’m looking to either Senator Boisvenu or Senator Batters to introduce the amendment.
[Translation]
Senator Boisvenu: Incidentally, I want to acknowledge publicly the work of our people, who are very good. So it is moved:
That Bill C-75 be modified in clause 46, on page 15, by replacing lines 30 and 31 with the following:
“years who”.
The Chair: For the introduction of the amendment, senator, I am listening.
Senator Boisvenu: It’s related to the offence of prison breach. It’s along the same lines as the other amendments I’ve introduced. For us, there are offences that may be viewed as affording some leeway in the judicial system and considered as summary offences or not. However, for our correctional system, I think we must maintain the concept of a criminal offence for this type of incident.
[English]
The Chair: Any other comments from the honourable senators?
[Translation]
Senator Dalphond: Senator Boisvenu, how many cases in a year involve failure to comply with conditions?
Senator Boisvenu: There must be many. I don’t have the statistics with me.
Senator Dalphond: If I told you there weren’t any?
Senator Boisvenu: Then let’s leave it there. It’s because it’s criminal that there aren’t any.
[English]
Senator Dalphond: There’s not one single reported case on that provision. Where is the problem?
[Translation]
The Chair: Are there any observations before I call the vote?
[English]
All those in favour of the amendment as introduced by the Honourable Senator Boisvenu please raise your hand. All those opposed? The amendment is defeated.
Regarding clauses 46 to 62, I have been informed there are no amendments to that section of the act. I will repeat the question: Shall clauses 46 to 62 carry?
Some Hon. Senators: On division.
The Chair: Agreed, on division.
[Translation]
I think there is an amendment to clause 63. Senator Boisvenu, this is amendment CPC-63.22.
Senator Boisvenu: This concerns an offence of improperly interfering with a dead body.
The Chair: Would you please introduce the amendment, senator?
Senator Boisvenu: It is moved:
That Bill C-75 be amended in clause 63, on page 22, by replacing lines 5 and 6 with the following:
“years who”.
I don’t want to elaborate on this subject. It’s a subject that’s very difficult and deeply affecting for the families of victims, and I believe that, in a similar case... If Senator Dalphond asks us for statistics on the subject, it occurs frequently. We recently saw a case involving a 2-year-old child in Montreal. So I find the idea of turning this into a summary offence unacceptable for the victims and their loved ones.
The Chair: Thank you, Senator Boisvenu. Any further comments?
Senator Pratte: Here’s a perfect example where a broad range of possible offences are covered by section 182 of the Criminal Code, ranging from neglect of duty to bury a person to improper interference with a human body. In this clause, it would be an excellent idea for a prosecutor to have discretion, based on the seriousness of the offence committed, to choose the summary procedure or else indictment in the most serious cases.
The Chair: Any other comments?
Some Hon. Senators: No.
The Chair: Then I’ll call the vote.
[English]
Those who support the amendment as introduced by Senator Boisvenu please raise your hand.
Those opposed?
The amendment is defeated.
Shall clauses 63 to 95 carry? The chair has not been informed there are any amendments to that group of clauses.
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: Carried, on division.
[Translation]
We have now reached clause 96, and I think an amendment has been moved. In fact it’s an addition to clause 96. So we are on page 33, if I’m not mistaken. This is amendment PM-96.33.
[English]
Since it is an addition to clause 96, I suggest that I first call the vote on 96. After that, I will come back to you, senator.
Shall clause 96 carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: Carried, on division.
Senator McIntyre: I move:
That Bill C-75 be amended on page 33 by adding the following after line 21:
“96.1 Paragraph 271(b) of the Act is replaced by the following:
(b) an offence punishable on summary conviction and is liable to imprisonment for a term of not more than two years less a day or, if the complainant is under the age of 16 years, to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of six months.”.
I’m proposing this amendment because Elizabeth Sheehy, Professor Emeritus of Law at the University of Ottawa, testified before us on May 9. This is what she had to say on this issue:
This new maximum will apply to all forms of assault except sexual assault. I think that’s quite strange. It’s quite a strange anomaly. It ought to be rectified. They should all have the same sentencing maximum.
These are the offences of exposure involving a person under the age of 16 years — section 273(2)(b) of the code — and sexual assault against a person who is 16 years or older — subsection 271(b) of the code. These offences provide for maximum sentences of six months and eighteen months respectively, but with Bill C-75, as we know, colleagues, summary conviction offences will be increased to two years less a day.
This amendment would increase that two years less a day so that it is consistent with the other offences.
Senator Sinclair: Could I make a suggestion that we ask the officials to come to the table? I would like them to comment on this suggested amendment.
The Chair: It’s an opportune request. I see Ms. Morency, a familiar contributor to our work.
Senator McIntyre: I’m glad that was suggested, because I was going to quote what Ms. Morency said.
[Translation]
The Chair: If you would help move us along, Ms. Morency. The Honourable Senator Sinclair would like to ask you a question concerning the amendment moved by the Honourable Senator McIntyre.
[English]
Senator Sinclair will ask you a question, Ms. Morency.
Senator Sinclair: The minister’s letter references this issue. Do you have the minister’s letter in front of you?
Could you remind senators of the minister’s response to this very question. Tell us what position the department takes with regard to an amendment such as this?
Carole Morency, Director General and Senior General Counsel, Criminal Law Policy Section, Department of Justice Canada: As the senator notes, in the minister’s response to the undertakings, he explained why there is this discrepancy —
The Chair: Can you give us the page?
Ms. Morency: It commences at the bottom of page 1 in English, the minister’s response.
It’s the first undertaking that he responds to, so it’s No. 1. He explains why there is a difference and explains the existing penalty.
In the response, the distinction is if the person is over 16 the maximum penalty is only 18 months. It is not proposed to be increased to two years less a day. The explanation given by the minister in the letter is because, through drafting practices that would have involved repealing the provision that is there and re-enacting it, which would have involved re-enacting the MMP that exists in that provision where the victim is under 16 years of age. It’s a drafting convention our drafters follow.
The letter continues on at page 2 to explain that in the appropriate situation, where a Crown actually believed that the facts and circumstances of a particular case were deserving of a higher penalty, the Crown would have the ability to elect to proceed on indictment and seek the higher penalty in that case for that group of complainants.
The Chair: Are there any other questions, Senator Sinclair or any other honourable senators who want to question the witness?
Senator Sinclair: I don’t have further questions.
[Translation]
Senator Boisvenu: I didn’t understand the logic in leaving this offence at this level, when we’re making others more serious. I’m trying to understand the logic.
[English]
Ms. Morency: Bill C-75 proposes to increase the maximum penalty on summary conviction, as a standard, to two years less a day. This is one of the offences where it was not proposing to do that, and the rationale provided is simply because it would have involved dealing with a mandatory minimum penalty. The government indicated that sentencing is under review, including mandatory minimum penalties, and pending the conclusion of that review there was not an interest to look at re-enacting further mandatory minimum penalties. That’s the response given in the letter.
[Translation]
Senator Boisvenu: It’s strictly political. You say the government didn’t want it because it intended to review — If we amended the provision to classify this offence at the same level as all the others, that would be logical.
[English]
Ms. Morency: When the minister was here before the committee, he spoke about the concerns in general around mandatory minimum penalties. I believe the committee heard from some witnesses who have spoken to that as well. That is why the government and minister reiterated that it has committed to and engaged in a broader review of sentencing that will include mandatory minimum penalties.
As a matter of practice going forward, what Bill C-75 proposes to hybridize or to increase on the maximums is essentially not opening up offences that have mandatory minimum penalties to avoid re-enacting further, even if they are there are already. That’s the drafting convention; it is a repeal and re-enactment.
[Translation]
Senator Boisvenu: I said it in my speech when I criticized Bill C-75, for example, regarding animal abuse. We risk getting tougher convictions in this case than in sexual assault cases, as my colleague mentioned.
Senator Dalphond: We’re going to prosecute by indictment —
Senator Boisvenu: I’m trying to understand the logic. Citizens listen to us, you know. Consequently, we’ll be less harsh with a person who has assaulted someone than with someone who assaults an animal. The logic defeats me.
[English]
Ms. Morency: It is an anomaly that would exist for those two offences. It is this one and the other one that the minister is undertaking response to. But as I said, and as the minister’s undertaking indicates, in the particular case, given the facts and circumstances of a case where there is a view that the circumstances should be treated more seriously, on summary conviction it will already be at two years. You will be there, and on indictment you can go on for the higher maximum penalty.
There is a way to deal with it in practice right now, pending the conclusion of the broader review, and it’s as proposed in the minister’s response.
Senator Pratte: You mentioned a drafting convention, which would require that this section be repealed and then re-enacted. Does that mean if we adopted this amendment it would not be valid?
Ms. Morency: As you know, the Minister of Justice has obligations under the Department of Justice Act to certify consistency with the Charter. The minister and the government have indicated that they are not looking to take further actions to enact mandatory minimum penalties pending this broader review.
Obviously, that mandatory minimum penalty is there now; it’s in that offence. Parliament has already enacted that. The distinction in the treatment between the maximum penalty exists now where the victim is under 16. It is already at two years less a day and it has been that way since Parliament enacted these changes in 2015.
But I understand the comment about whether this is logical in the grand scheme of the bill going forward. It is different, and the explanation is provided for why it is different in that case. Operationally, if there is a concern in a particular case, if the committee chose to not support the amendment, understanding the concern in a particular case, Crown would be able to still deal with more serious cases in an appropriate way.
Senator Pratte: Thank you.
The Chair: Any other interventions before I call the vote?
All those in favour of the amendment as introduced by the Honourable Senator McIntyre please raise your hand.
All those opposed?
The amendment is defeated.
Shall clauses 97 to 105 carry?
Some Hon. Senators: On division.
The Chair: On division.
Under those six, I am informed there is an amendment. It’s the amendment identified on upper right, CPC-106.35-36.
[Translation]
So this amendment is identified as CPC-106.35-36. Do you have it?
Senator Boisvenu: Yes, I’m getting there.
The Chair: So we are at clause 106, on page 35. If you would proceed, Senator Boisvenu.
Senator Boisvenu: It is moved:
That Bill C-75 be amended in clause 106,
(a) on page 35, by replacing line 33 with the following:
“of an indictable offence and liable to imprisonment for a term of not more than five years.”; and
(b) on page 36, by deleting lines 1 to 3.
Senator Boisvenu: With this amendment, we’re responding in large part to the concerns of the Ombudsman for Victims of Crime, who asked us not to turn this offence into a hybrid offence. These are traumatizing situations for families, tough situations that leave after-effects, and it’s a serious human rights violation to abduct a person under 16 years of age or under 14. For us, it’s important to keep this offence at a criminal level rather than hybridize it.
The Chair: Thank you. Any other comments?
[English]
All those in support of the amendment introduced by Senator Boisvenu please raise your hand.
All those opposed?
The amendment is defeated.
Shall clause 106 carry?
Some Hon. Senators: On division.
The Chair: On division.
[Translation]
At clause 107, I believe we have an amendment. It is amendment CPC-107.36.
Senator Carignan: Pardon me, Mr. Chair, is clause 104 part of the group?
The Chair: Yes, it’s part of the group. Did you have an amendment?
Senator Carignan: No, I’d like to request a recorded vote.
The Chair: If it’s all right with you, we will finish with Senator Boisvenu’s amendment to clause 107, since we are on that clause. Then I’ll accept your amendment, Senator Carignan, if that’s fine with you.
Senator Boisvenu: Then it is moved:
That Bill C-75 be amended in clause 107, on page 36, by replacing lines 12 to 15 with the following:
“possession of that person is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years.”.
This amendment is made in the same context as the previous one. Every person who, not being the parent or guardian of a child — For families that experience this type of trauma, turning this into a hybrid offence is utterly unacceptable. Furthermore, the Ombudsman for Victims of Crime asked us to defend her position and not to turn this type of charge into a hybrid offence but to leave it at the criminal level.
[English]
Senator Batters: On this one, when we’re dealing with a kidnapping offence, there are few offences that are more serious than kidnapping. As witnesses to this committee mentioned in this study, this would send a message to have a hybrid offence for this particular kidnapping issue. This would send the message that this is less serious than a strict indictment and it would send a negative message to society in general in Canada.
We heard the Ombudsman for Victims of Crime profess concerns with this particular hybridization. My question on this and many of the ones the government is seeking to have as hybrids is: Where are the government studies and statistics to show that we should make this change to hybrid? If we have this particular type of offence classified as a hybrid, how many offenders will end up in provincial prisons? There is the cost to the provinces, that sort of thing. Where there’s this level of criminal intent, I think we should be treating it in the most serious category as a strict indictment offence and nothing can be more important than the life of a child.
[Translation]
Senator Boisvenu: I would like to report a major concern of police officers and victim groups. I’m thinking, for example, of MOVA, which is very active in Manitoba. It’s particularly concerned that this will become a summary offence and that there would then be no requirement to take DNA samples. Canada already lags behind all modern countries in the matter of identifying the accused. This will merely exacerbate the situation. Consequently, if this offence remains criminal, DNA samples will automatically be taken, but there’s a risk that no DNA sampling will be done if it becomes a summary offence.
Senator Dalphond: I would note that the case law, particularly as interpreted by the Court of Appeal for Ontario, states that the offence concerned consists in deliberately depriving a parent of his or her rights by detaining a child. This isn’t an offence against the person of the child; it’s a violation of the custodial rights of the parent. There are a host of situations that may apply with respect to the custody of a child in which a summary procedure might prove appropriate.
[English]
The Chair: Any other interventions before I call the vote?
All those in favour of the amendment as introduced by Honourable Senator Boisvenu, please raise your hand.
Senator Batters: Can we have a recorded vote on this one?
[Translation]
The Chair: Madam Clerk, would you please proceed with the recorded vote?
Keli Hogan, Clerk of the Committee: The Honourable Senator Joyal?
Senator Joyal: Abstention.
Ms. Hogan: The Honourable Senator Batters?
Senator Batters: Yea.
Ms. Hogan: The Honourable Senator Boisvenu?
Senator Boisvenu: Yea.
Ms. Hogan: The Honourable Senator Carignan?
Senator Carignan: Yea.
Ms. Hogan: The Honourable Senator Dalphond?
Senator Dalphond: Nay.
Ms. Hogan: The Honourable Senator Dupuis?
Senator Dupuis: Nay.
Ms. Hogan: The Honourable Senator Dyck?
Senator Dyck: Nay.
Ms. Hogan: The Honourable Senator Gold?
Senator Gold: Nay.
Ms. Hogan: The Honourable Senator McIntyre?
Senator McIntyre: Yea.
Ms. Hogan: The Honourable Senator Miville-Dechêne?
Senator Miville-Dechêne: Nay.
Ms. Hogan: The Honourable Senator Pratte?
Senator Pratte: Nay.
Ms. Hogan: The Honourable Senator Sinclair?
Senator Sinclair: Nay.
Ms. Hogan: Yeas, 4; nays, 7; abstentions, 1.
[English]
The Chair: Shall clause 107 carry?
Some Hon. Senators: On division.
[Translation]
The Chair: Senator Carignan, I will accept your request now.
Senator Carignan: Yes, pardon me, because we proceeded as a group earlier, but I wanted to have a recorded vote on clause 104.
The Chair: The Honourable Senator Carignan asks that we revisit the vote on clause 104.
Senator Carignan: I would like a vote on clauses 104 and 105.
The Chair: Is it the committee’s wish to agree to revisit clauses 104 and 105?
[English]
There is no amendment on clause 104. Senator Carignan’s point is that I have grouped the sections of the bill where there are no amendments, and clause 104 was in that group. Senator Carignan would like to have a vote specifically on clause 104.
I suggest we go to the vote to make it clear. I don’t want to impose my will. I’m not here to impose my will. I’m here to facilitate the work.
All those in favour of clause 104, please raise your hand.
[Translation]
Senator Carignan: I would like a recorded vote.
Senator Dupuis: First, we voted for this clause, and now we’re having a recorded vote on the same clause.
The Chair: Exactly. That’s the point of the procedure. Thank you for clarifying that.
Madam Clerk, would you please proceed with the recorded vote?
Ms. Hogan: The Honourable Senator Joyal, P.C.?
Senator Joyal: Abstention.
Ms. Hogan: The Honourable Senator Batters?
Senator Batters: Nay.
Ms. Hogan: The Honourable Senator Boisvenu?
Senator Boisvenu: Nay.
Ms. Hogan: The Honourable Senator Carignan, P.C.?
Senator Carignan: Nay.
Ms. Hogan: The Honourable Senator Dalphond?
Senator Dalphond: Yea.
Ms. Hogan: The Honourable Senator Dupuis?
Senator Dupuis: Yea.
Ms. Hogan: The Honourable Senator Dyck?
Senator Dyck: Yea.
Ms. Hogan: The Honourable Senator Gold?
Senator Gold: Yea.
Ms. Hogan: The Honourable Senator McIntyre?
Senator McIntyre: Nay.
Ms. Hogan: The Honourable Senator Miville-Dechêne?
Senator Miville-Dechêne: Nay.
Ms. Hogan: The Honourable Senator Pratte?
Senator Pratte: Yea.
Ms. Hogan: The Honourable Senator Sinclair?
Senator Sinclair: Yea.
Ms. Hogan: Yeas 6; nays 5; abstentions 1.
Senator Carignan: Same as for clause 105.
The Chair: We will continue with the group of clauses —
Senator Carignan: I also wanted a recorded vote for clauses 104 and 105.
The Chair: Do you agree to postpone the vote on clause 104 to clause 105?
Senator Carignan: If people vote the same way.
The Chair: A recorded vote, please, for clause 105.
Ms. Hogan: The Honourable Senator Joyal, P.C.?
The Chair: Abstention
Ms. Hogan: The Honourable Senator Batters?
Senator Batters: Nay.
Ms. Hogan: The Honourable Senator Boisvenu?
Senator Boisvenu: Nay.
Ms. Hogan: The Honourable Senator Carignan, P.C.?
Senator Carignan: Nay.
Ms. Hogan: The Honourable Senator Dalphond?
Senator Dalphond: Yea.
Ms. Hogan: The Honourable Senator Dupuis?
Senator Dupuis: Yea.
Ms. Hogan: The Honourable Senator Dyck?
Senator Dyck: Yea.
Ms. Hogan: The Honourable Senator Gold?
Senator Gold: Yea.
Ms. Hogan: The Honourable Senator McIntyre?
Senator McIntyre: Nay.
Ms. Hogan: The Honourable Senator Miville-Dechêne?
Senator Miville-Dechêne: Yea.
Ms. Hogan: The Honourable Senator Pratte?
Senator Pratte: Yea.
Ms. Hogan: The Honourable Senator Sinclair?
Senator Sinclair: Yea.
Ms. Hogan: Yeas, 7; nays, 4; abstentions, 1.
[English]
The Chair: Clause 105 is carried.
[Translation]
Then we will continue with clauses 108 to 114.
Senator Carignan: I would like a recorded vote on clause 109. This is the last one. We’re talking about human trafficking, and I think it’s an important topic.
[English]
The Chair: Shall clause 108 carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: On division.
Shall clause 109 carry?
Some Hon. Senators: No.
[Translation]
Senator Carignan: I would ask that we have a recorded vote.
The Chair: We will have a recorded vote on clause 109 of the bill, please.
Ms. Hogan: The Honourable Senator Joyal, P.C.?
The Chair: Abstention.
Ms. Hogan: The Honourable Senator Batters?
Senator Batters: Nay.
Ms. Hogan: The Honourable Senator Boisvenu?
Senator Boisvenu: Nay.
Ms. Hogan: The Honourable Senator Carignan, P.C.?
Senator Carignan: Nay.
Ms. Hogan: The Honourable Senator Dalphond?
Senator Dalphond: Yea.
Ms. Hogan: The Honourable Senator Dupuis?
Senator Dupuis: Yea.
Ms. Hogan: The Honourable Senator Dyck?
Senator Dyck: Yea.
Ms. Hogan: The Honourable Senator Gold?
Senator Gold: Yea.
Ms. Hogan: The Honourable Senator McIntyre?
Senator McIntyre: Nay.
Ms. Hogan: The Honourable Senator Miville-Dechêne?
Senator Miville-Dechêne: Nay.
Ms. Hogan: The Honourable Senator Pratte?
Senator Pratte: Yea.
Ms. Hogan: The Honourable Senator Sinclair?
Senator Sinclair: Yea.
Ms. Hogan: Yeas, 6; nays, 5; abstentions, 1.
[English]
The Chair: Clause 109 is carried.
Shall clause 110 to 114 carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: Thank you, honourable senators.
We move on to section 115, where the chair has been informed that there is an amendment. It’s the amendment identified in your stack of amendments as CPC-115.38.
[Translation]
This amendment is identified as CPC-115.38. It is an amendment to clause 115, on page 38 of the bill.
I would invite Senator Boisvenu to introduce the amendment, please.
Senator Boisvenu: It is moved:
That Bill C-75 be amended in clause 115, on page 38, by replacing lines 11 to 14 with the following:
“guilty of an indictable offence and liable to imprisonment for a term of not more than five years.”;
Here we’re talking about forced marriage. I’m going to try to be as delicate as possible because we’ve known of incidents of this kind in Quebec and Canada over the years. Ms. Illingworth, from the Office of the Ombudsman for Victims of Crime, told us that the possibility of making forced marriage a hybrid offence is a major concern. Forced marriages don’t just involve adults; in some cultures, they’re also arranged for children. Consequently, the idea of turning it into a hybrid offence is virtually incomprehensible. Our country also wants to send a clear message to those who, for one cultural reason or another, might consider this option for members of their families. It’s important to state clearly that forced marriage is a violation of human rights and freedom of choice. Consequently, this must remain a criminal offence.
[English]
Senator Batters: Dealing with forced marriages and marriage of a person under 16, I guess I’d like to hear some explanation from the government why it’s so urgent to change this particular offence into a hybrid one.
We did hear from the witness David Bird who said that hybrids will encourage prosecutors to use summary convictions because of faster proceeding, and that will end up burdening the provincial courts. Given that the intent of this bill, as specified by the minister, was to try to deal with the Jordan decision and court delays, something like this seems to potentially lead to even more court delays and worsening our court delay crisis.
I’m not sure if anyone from the Department of Justice can explain why this particular offence was included in the hybridization. We’ve not really heard much about that particular specific. That would be helpful to know.
[Translation]
The Chair: We ask Ms. Morency, from the Department of Justice, to approach the table.
[English]
Senator Sinclair also wants to ask the witness a question.
Ms. Morency: To answer the question, the proposal here is part of the overall proposal by Bill C-75 on hybridization. As the minister has said, and as the evidence provided to the committee, it is speaking in support of the proposed hybridization.
The idea is not to say the offence is necessarily less serious. It was an approach that was strongly supported by provincial-territorial ministers to look at offences as a group. Not one by one, but to look at whether there were some efficiencies that could be gained in trying to hybridize a small group of existing straight indictable offences. In this way, in cases where the facts and circumstances of the case suggest that the sentence that would be imposed for that particular offender in those circumstances at that point in time would be in the range of what is a summary conviction offence, that the Crown would then have the choice to elect to proceed summarily and arrive at a conclusion that would be the same sentence imposed under a straight indictment but in a more efficient process. That would be the same argument or justification for this particular offence.
Again, I would refer the committee to the minister’s letter to the committee.
The Chair: Can you identify the page in the letter of the minister? It’s helpful to anyone who will go back to the minutes of the committee to know where to look in the letter.
Ms. Morency: Annex 2 to the minister’s letter to the committee provides a chart of a number of offences. When we were here, the question from the committee was what evidence there was to show that sentences now being imposed are in the summary conviction range. We did a couple of things.
We looked at cases reported or sentences reported to the Canadian Centre for Justice Statistics, and that wasn’t very helpful. They weren’t able to track sentences coming in at any range for any meaningful number of cases, so a lot of it came up with zero cases. Then we looked at a select number of offences, particularly ones that were gathering some attention by this committee and others, why hybridize an offence such as this?
As the chart notes for the committee, there are some cases that come up when you look at reported case law that shows the sentences imposed in that particular case, in those circumstances, were in the summary conviction range.
For the specific offence that is before the committee with this motion, there are no reported cases that came up. The committee may recall that that was enacted in, I think, 2015, but there are no reported cases that we were able to identify for the committee.
The Chair: On that specific offence?
Ms. Morency: On that one, yes, forced marriage.
Senator Batters: I disagree, especially because it’s quite a new offence so it has not been in front of the courts for very long.
Just as I’m listening to you answer, I am wondering why those two offences, forced marriages and marriage of persons under 16, would be treated in the same way? I can see that a forced marriage could potentially be a much more significant offence. I can maybe foresee types of offences that might potentially be less serious under the other portion of that. Why are those two being treated the same?
Ms. Morency: I don’t think I have anything further to add other than, again, the objective of Bill C-75 was to identify straight indictable offences that carried maximum penalties of ten years, five years and two years and to look to see whether those could be hybridized and efficiencies gained for appropriate cases.
If it helps the committee to understand the approach, it is clear that one of the things that identifies whether an offence is serious or less serious is, if it’s an indictable offence, straight indictment, that signifies one thing. Penalties themselves also signify the seriousness of an offence.
The committee may know that in the 1980s, when the Criminal Code was amended to create the new sexual assault offences, the three offences of general application, section 272 is a hybrid offence and has been so since 1983. The committee will understand that when the offence of sexual assault covers a broad range of conduct, from less serious to more serious, and yet the offence is still considered a serious one, it just provides for cases that involve circumstances or facts that are at the lower end of the gravity scale —in that particular case — there is an approach that would provide the same outcome, the same sentence, but in a more efficient process. That would be the justification that applies throughout for all the proposed hybridization of offences.
[Translation]
Senator Boisvenu: I would like to cite the testimony of Ms. Illingworth, who is the Ombudsman for Victims of Crime. Her words are full of meaning and should be retained as grounds, and I quote:
These offences, primarily committed against women and children, should not be of lesser concern. They constitute a grave violation of human rights, including the rights of women and children to live free from coercive control and violence. The serious nature and harm caused by these offences must be recognized in our laws and policies.
[English]
Senator Sinclair: Thank you. The comments that have been made by the proponents of these amendments that suggest we return everything to indictable offences from hybrid suggests that there is a lessening of the penalty when the public always needs to be reminded that the maximum penalty for indictable offences will not be affected by these changes. We shouldn’t try to mislead the public by suggesting otherwise.
The circumstances of offences vary widely in all situations, and this particular one is one that has occasion where we have people who run away to get married. I know there have been situations where people have lied about their ages in order to be married. As a result, in a circumstance such as that, while they have committed an offence by doing that and the other party who may know the age also does, they shouldn’t be treated the same as somebody who kidnaps a child and forces them to marry them. The circumstances of each of the situations always need to be kept in mind, particularly the variance of them.
Also, the comment made about stacking all of these into provincial courts and causing further delay in the provincial courts is not accurate. The reality is that when matters go into provincial court, they will only be the summary conviction matters. The indictable matters will still go to the Superior Courts and the individuals will be entitled to proceed accordingly.
This will take some of the cases from the Superior Courts and allow them to be dealt with in the provincial courts. My assumption is that the prosecutor will do so in a way that allows them to exercise their discretion accordingly. There was a comment made by Senator Boisvenu that he has a huge respect for prosecutors and that we should make their job easier and not harder. These changes make their job easier. I suggest we respect that as well.
[Translation]
Senator Miville-Dechêne: I’m acting as a replacement on this committee. We studied forced marriage in Quebec in my previous career at the Council on the Status of Women. The reason there have been no cases yet is that forced marriage is extremely difficult to prove. In many circumstances, forced marriages occur outside Canada. Families take young women or their daughters out of the country to enter them into forced marriages. Consequently, I have problems with the idea that there may be numerous mitigating circumstances in the matter of forced marriage.
My question is for Ms. Morency, and it refers to Senator Sinclair’s remarks on maximum prison terms of five years. Is there a difference in maximum terms between an indictable offence punishable by a maximum five-year sentence and an offence punishable on summary conviction? Is there a difference from the standpoint of maximum sentences?
[English]
Ms. Morency: The maximum sentence on indictment would not change. It’s currently five years. It would remain five years.
[Translation]
Senator Miville-Dechêne: For both, so that it’s an offence punishable on summary conviction?
[English]
The Chair: Could you complete the answer to Senator Miville-Dechêne’s question?
Ms. Morency: The question is if the maximum penalty will remain the same for section 293.1, the forced marriage offence. My answer is on the all the hybridizations, the existing maximum penalty in the Criminal Code now remains under Bill C-75 on indictment. What changes is that, in becoming hybrid, on summary conviction, the bill would create a maximum penalty, and the maximum penalty would go from what is currently the default for most summary conviction offences to two years less a day. That would be the difference between the two maximum penalties: two years less a day on summary conviction, and five years on indictment.
[Translation]
The Chair: Does that answer your question, senator?
Senator Miville-Dechêne: I understand that there’s a difference in maximum sentences between two years and five years, depending on the procedure chosen.
Senator Boisvenu: Senator Miville-Dechêne’s question is an important one because of two years less a day — First of all, inmates who exhibit similar behaviour are required to take part in programs. They must seriously reflect on their values when they impose this on members of their families, especially children. If we retain the offence punishable on summary conviction, that means there’s a maximum sentence of two years less a day. If they serve a sentence of more than two years, they wind up in a penitentiary where they can take programs. That won’t be possible in a provincial prison because there are no programs or measures there.
Senator Pratte: Whether it’s this offence or another involving a maximum sentence of five years, prosecutors, for various reasons, will seek a one-year term because this offence falls into that category. Consequently, the bill would give prosecutors the option — still requiring the same sentence of no less than one year — of proceeding by summary conviction, which would be quicker, less complicated and less costly. The sentence would be the same. All that hybridization permits is that, in cases where prosecutors believe that sentences will be less than two years, they may choose the summary procedure, which is simpler and less costly for everyone. That won’t change the sentences.
[English]
The Chair: All those in favour of the amendment as introduced by the Honourable Senator Boisvenu, please raise your hand.
All those opposed?
The amendment is defeated.
[Translation]
In clause 115, we also have a second amendment, which I will introduce to you and which is identified as CPC-115.36b.
[English]
It’s identified by the letters CPC-115.36b.
Is it 36 or 38? Yes, 38. I’ve been given the wrong one.
[Translation]
Would you please give me amendment 38? I apologize, honourable senators. I’m going to recall the amendment to be sure everyone has the same copy: CPC-115.38b.
Would you please introduce the amendment, Senator Boisvenu?
Senator Boisvenu: It is moved:
That Bill C-75 the amended in clause 115, on page 38, by replacing lines 11 to 14 with the following:
“guilty of an indictable offence and liable to imprisonment for a term of not more than five years.”;
As Senator Batters said, this refers to the marriage of persons under 16 years of age and is therefore in the same vein. Since the legal age in Canada is 16, marrying children under the age of 16 is an offence under the act, and we feel it should remain in indictable offence.
The Chair: Are there any other remarks before I call the vote?
[English]
All those in favour of the amendment as introduced by Senator Boisvenu, please raise your hand.
All those opposed?
The amendment is defeated.
Shall clause 115 carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: Carried on division.
Shall clauses 116 to 121 carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: Carried, on division.
[Translation]
At clause 122, we note there is an amendment identified as CPC-122, an amendment on page 39. Don’t you have that one? Then I’ll request it. Thanks for telling me. So this is amendment CPC-122. Please go ahead, Senator Boisvenu.
Senator Boisvenu: I move:
That Bill C-75 be amended in clause 122,
(a) on page 39, by replacing line 31 with the following:
“guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years or”; and
(b) on page 40, by deleting lines 1 to 4.
The Chair: Would you provide us with a further explanation?
Senator Boisvenu: This refers to theft over $5,000. This kind of theft has a major impact on an individual. This provision sends quite a negative message. It’s a lot, especially if the property stolen is a testamentary instrument. Since this often involves older individuals, we think it should remain an indictable offence.
The Chair: Are there any other comments on this amendment to clause 122, which is an offence against property? Then I call the vote on this amendment.
[English]
All those in favour of the amendment as introduced by the Honourable Senator Boisvenu, please raise your hand.
All those opposed?
[Translation]
The amendment is defeated.
[English]
Shall clause 122 carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: That’s why I was looking to your side.
Shall clauses 123 to 138 carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
[Translation]
The Chair: At clause 139, I believe there is an amendment. If you would go to the text of the amendment, it is the one identified as CPC-139.45. Senator Boisvenu, do you have the amendment?
Senator Boisvenu: Yes. I move:
That Bill C-75 be amended in clause 139, on page 45, by replacing lines 26 and 27 with the following:
“10 years who, directly or indirectly, buys or sells a se-”.
This refers to the fraudulent manipulation of stock exchange transactions. We feel this is a serious crime and suggest leaving it as an indictable offence and not making it a hybrid.
[English]
The Chair: All those in favour of the amendment as introduced by the Honourable Senator Boisvenu, please raise your hand.
All those opposed?
The amendment is defeated.
Shall clause 139 carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: Shall clauses 140 to 183 carry?
Some Hon. Senators: On division.
The Chair: The chair has been informed that there is an amendment on clause 184.
[Translation]
It is the amendment identified as CPC-184.
[English]
Does everyone have a copy of the amendment?
[Translation]
Senator Boisvenu: So, as you said, at clause 184, on pages 59 and 60, it is moved:
That Bill C-75 be amended in clause 184,
(a) on page 59, by replacing lines 32 to 34 with the following:
“ganization is guilty of an indictable offence and liable to imprisonment for a term of not more than five years.”; and
(b) on page 60, by deleting line 1.
This concerns participation in criminal organizations. I won’t conceal the fact that this is a major concern for us in Quebec and for metropolitan areas in Canada. I think the message we’re sending to these organizations by hybridizing summary offences runs counter to all the efforts police departments have been making for years to put an end to those organizations. We don’t understand the government’s intent in making this a hybrid offence.
[English]
Senator Batters: We’re dealing with organized crime, one of the most serious crimes in the Criminal Code. I don’t understand the reasoning of the government as to why they would be making this a hybrid offence. Again, what will the potential impact be? Will we potentially have dangerous offenders receiving lesser sentences? Where is the evidence of the government that this will help achieve their aims?
We did see on the other side, in the House of Commons, that the government accepted amendments to remove the offences of terrorism and advocating genocide from their particular hybrid offences. I’m not sure why organized crime wasn’t included in those that they accepted. I’m wondering if maybe we could have some rationale from the Ministry of Justice about that particular point.
[Translation]
The Chair: If you would return to the table, please, Ms. Morency.
[English]
Ms. Morency: If I may refer the committee to the letter from the minister to the committee with his undertakings at Annex 2, there is a chart of cases from reported case law that provides some examples of cases where the sentence imposed would fall within the summary conviction range. That shows that for this offence — it’s noted at page 6 of Annex 2, row 18 — there are a couple of cases cited where the sentence imposed was between four months to two years as the range.
To the other point, yes, it’s a terrorism offence, but the existing maximum penalty on indictment is five years, so it is of a different nature than some of the other terrorism offences that might carry a higher penalty on indictment.
If I may, just to come back to an earlier question, there wasn’t a specific reference to the maximum penalty on summary conviction, and that’s because in some instances it shows up in section 787 of the Criminal Code that says if it’s not otherwise specified, here’s the default that will otherwise apply, and it’s two years less a day. It speaks to that question.
The Chair: Yes, of course.
[Translation]
Senator Boisvenu: I would like to emphasize how important it is not to reduce this to a hybrid offence. Just think of the legalization of cannabis the Liberal government authorized barely a few months ago. The objective was to remove organized crime from that industry, and what we can see today is that it’s even more powerful and involved than ever. I think that, by making this a hybrid and not a summary offence, we’re sending a very negative message about that industry, that it’s very hard to remove it from our society. The proof of that is that we decided to legalize a drug but that organized crime is even more involved in it now. I think we’re contradicting ourselves by making this a hybrid offence.
Senator Dalphond: For those people watching us, we could increase the sentence to 25 years, based on Senator Boisvenu’s logic, and thus send an even stronger message. The reality is that there are various degrees of participation in criminal activity and the support of that activity, and all of this calls for some discretion on the part of the crown in deciding whether to indict or charge a summary offence in cases where participation is minor and we want to solve the case quickly.
This makes it possible to expand the scope to include those we choose to prosecute because we have the means to do so in various ways. This also enables the system to handle the various cases based on what’s appropriate. I think the public must clearly understand that this doesn’t make the offences any less serious but enables the crown to do more than it can now.
Senator Boisvenu: I don’t know whether Senator Dalphond has followed the same organized crime activities as I have in Quebec since around 2001, activities that police departments are working hard to neutralize. Not a lot of minor offences are committed in that context. We’re really talking about very serious crimes, and, when it comes to organized crime, I don’t think we’re talking about choirboys.
The Chair: Thank you, honourable senators.
I will now call the vote, since no other senators have expressed their intention to speak.
[English]
All those in favour of the amendment as introduced by —
Senator Batters: Could we have a recorded vote on this one?
The Chair: Yes. Certainly, Senator Batters.
[Translation]
Madam Clerk, please proceed to a recorded vote on Senator Boisvenu’s amendment to clause 184 of the bill.
Ms. Hogan: The Honourable Senator Joyal, P.C.?
Senator Joyal: Abstention.
Ms. Hogan: The Honourable Senator Matters?
Senator Batters: Yea.
Ms. Hogan: The Honourable Senator Boisvenu?
Senator Boisvenu: Yea.
Ms. Hogan: The Honourable Senator Carignan, P.C.?
Senator Carignan: Yea.
Ms. Hogan: The Honourable Senator Dalphond?
Senator Dalphond: Nay.
Ms. Hogan: The Honourable Senator Dupuis?
Senator Dupuis: Nay.
Ms. Hogan: The Honourable Senator Dyck?
Senator Dyck: Nay
Ms. Hogan: The Honourable Senator Gold?
Senator Gold: Nay.
Ms. Hogan: The Honourable Senator McIntyre?
Senator McIntyre: Yea.
Ms. Hogan: The Honourable Senator Miville-Dechêne?
Senator Miville-Dechêne: Nay.
Ms. Hogan: The Honourable Senator Pratte?
Senator Pratte: Nay.
Ms. Hogan: The Honourable Senator Sinclair?
Senator Sinclair: Nay.
Ms. Hogan: Yeas, 4; nays, 7; abstentions, 1.
The Chair: The amendment is therefore defeated. Shall clause 184 carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: Carried, on division.
Shall clauses 185 to 195 carry?
Senator Boisvenu: On division.
The Chair: Carried, on division.
At clause 196, there are two amendments.
Senator Boisvenu: Could we break for five minutes?
The Chair: I can grant that at the committee’s request, except that the bells will be ringing for a vote in the chamber at 5:15 p.m.
Senator Boisvenu: Pardon me, then let’s continue.
[English]
Senator Batters: A pause at 5:15, then?
The Chair: At 5:15, I have no other choice but to adjourn. That’s the rule, as you know.
[Translation]
Senator Boisvenu: I withdraw my request.
The Chair: Thank you, senator.
At clause 196, we have two proposed amendments that are very similar in nature.
Senator Dalphond: I’m prepared to withdraw my motion since both amendments were drafted by the same person, who was probably given the same instructions, thus producing a very similar result.
The Chair: Then I will ask the Honourable Senator McIntyre to introduce the amendment identified as PM-196.62. You may go ahead.
Senator McIntyre: Before introducing the amendment, I’m informed that my amendment may be more comprehensive than that of Senator Dalphond, and here’s why. Senator Dalphond, I don’t think your amendment contains any reference to section 243, which is introduced by clause 82, and which concerns the concealing of a child’s body. That’s a mistake on the law clerk’s part that was subsequently corrected.
Senator Dupuis: You managed to get better service by going through the back door; is that what you’re telling me?
The Chair: Senator Dalphond, you have a copy of Senator McIntyre’s amendment?
Senator Dalphond: Yes.
The Chair: Do you agree on the point he raised?
Senator Dalphond: Yes, regarding section 243.
The Chair: Good.
[English]
I just raised the question to be sure it’s clear in everyone’s minds that there is agreement between Senator Dalphond and Senator McIntyre.
[Translation]
Senator McIntyre, if you would please proceed because I’m still watching the clock.
[English]
Senator McIntyre: Very well, chair. I move:
That Bill C-75 be amended on page 62 by adding the following after line 21 —
[Translation]
The Chair: On a procedural point, it would be preferable to adopt clause 196 before considering your clause adding a provision to clause 196.
[English]
So I will call the vote on section 196 before we move to the amendment because it’s an addition.
Shall 196 carry?
Some Hon. Senators: On division.
The Chair: On division. Thank you.
Go ahead, Senator McIntyre.
Senator McIntyre: Thank you, chair. I move:
That Bill C-75 be amended on page 62 by adding the following after line 21:
“196.1 (1) Subparagraph (c)(i) of the definition secondary designated offence in section 487.04 of the Act is replaced by the following:”
And then may I dispense?
The Chair: No, because it’s what will appear in the legislation, and I think that we have to have it on the record.
Senator McIntyre: On the record? I don’t have a problem with that.
The Chair: You go, and if you can do that before, of course, I’ll suspend for the bells that will start ringing in five minutes. Please go ahead, senator.
Senator McIntyre: I will continue:
“196.1 (1) Subparagraph (c)(i) of the definition secondary designated offence in section 487.04 of the Act is replaced by the following:
(i) subsection 52(1),
(i.001) subsection 57(3),
(i.002) section 62,
(i.003) subsection 65(2),
(i.004) subsection 70(3),
(i.005) subsection 82(1),
(i.006) subsection 121(1),
(i.007) subsection 121(2),
(i.008) section 122,
(i.009) subsection 123(1),
(i.01) subsection 123(2),
(i.011) section 124,
(i.012) section 125,
(i.013) subsection 139(2),
(i.014) subsection 142,
(i.015) section 144,
(i.016) section 145,
(2) Subparagraph (c)(iv) of the definition secondary designated offence in section 487.04 of the Act is replaced by the following:
(iv) section 182,
(iv.1) section 184,
(iv.2) section 184.5,
(iv.3) section 221,
(iv.4) section 242,
(iv.5) subsection 247(1),
(iv.6) subsection 247(2),
(iv.7) subsection 247(3),
(iv.8) section 262,
(3) Paragraph (c) of the definition secondary designated offence in section 487.04 of the Act is amended by adding the following after subparagraph (viii):
(viii.01) section 280,
(viii.02) section 281,
(4) Paragraph (c) —
The Chair: Senator, I’ll stop you here because I see the clock. I would not want any senator to miss the vote. I will call you as soon as we are back after the vote. We have until 6:15 to sit, and I think we could deal with this amendment when we get back.
Honourable senators, I will suspend the sitting and we will resume as soon as the vote is completed. I ask you to be back as fast as possible so we could at least deal with the amendment to section 196.1. Thank you, honourable senators.
(The committee suspended)
(The committee resumed.)
[Translation]
The Chair: We will resume. Under the procedure for introducing the amendment, pursuant to our rules, I will ask Senator McIntyre to continue introducing the amendment. We were on paragraph (4), subparagraph (c). If you would continue, please, Senator McIntyre.
[English]
Senator McIntyre: To continue:
(4) Paragraph (c) of the definition secondary designated offence in section 487.04 of the Act is amended by adding the following after subparagraph (viii.1):
(viii.11) section 290,
(viii.12) section 291,
(viii.13) section 292,
(viii.14) section 293,
(viii.15) section 293.1,
(viii.16) section 293.2,
(viii.17) section 300,
(viii.18 ) section 302,
(5) Paragraph (c) of the definition secondary designated offence in section 487.04 of the Act is amended by adding the following after subparagraph (viii.2):
(viii.21) sections 322 to 332,
(viii.21) paragraph 334(a),
(viii.22) subsection 338(1) or (2),
(viii.23) subsection 339(1),
(viii.24) subsection 340,
(6) Paragraph (c) of the definition secondary designated offence in section 487.04 of the act is amended by the adding the following after subparagraph (x):
(x.1) subsection 351(1),
(x.11) section 354,
(x.12) paragraph 355(a),
(x.13) section 357,
(x.14) paragraph 362(2)(a),
(x.15) subsection 363(3),
(x.16) section 363,
(x.17) subsection 377(1),
(x.18) section 378,
(x.19) section 382,
(x.2) subsection 382.1(1),
(x.21) section 383,
(x.22) section 384,
(x.23) section 386,
(x.24), section 394,
(x.25) section 394.1,
(x.26) section 396,
(x.27) section 397,
(x.28) section 399,
(x.29) section 400,
(x.3) section 405,
(7) Paragraph (c) of the definition secondary designated offence in section 487.04 of the Act is amended by adding the following after subparagraph (xi):
(xi.1) section 424,
(xi.11) section 424.1,
(xi.12) section 426,
(xi.13) section 435,
(xi.14) section 436,
(xi.15) section 436.1,
(xi.16) subsection 438(1)
(xi.17) subsection 439(2),
(xi.18) section 441,
(xi.19) section 443,
(xi.2) section 451,
(xi.21) section 460,
(xi.22) subparagraphs 465(1)(b)(i) and (ii),
(xi.23) section 753.3,”.
The Chair: Thank you, senator, for that marathon.
Senator Sinclair: I wonder if we could ask the department officials to approach the table.
The Chair: Ms. Morency and your colleague, please come to the table at the request of Senator Sinclair.
Senator McIntyre: Chair, if I may, before we do —
Senator Sinclair: I just wanted them to hear —
The Chair: Yes, that’s what I was going to say. The department officials will take their seats. My first decision is normally to invite Senator McIntyre to introduce the amendments, and maybe Senator Dalphond will want to add to those.
Senator McIntyre: Before I do, after discussions with Senator Dalphond, article 243 of clause 82, “Concealing body of a child,” that’s to be removed because that’s punishable by two years.
The Chair: You want to remove which one?
[Translation]
Senator McIntyre: I withdraw section 243 from clause 82, concerning the concealing of a child’s body. The offence is punishable by a sentence of two years.
[English]
“Concealing body of a child” is punishable by two years so it doesn’t apply.
[Translation]
The Chair: Please give a general introduction of the amendment so our colleagues can follow.
[English]
Senator McIntyre: I’ll try to be brief. Colleagues, I’m proposing this amendment because, like many of you, I’m concerned with the fact that reclassification and judicial referral hearings will have unintended consequences on the DNA Data Bank and on fingerprinting. This will make these two extremely important tools less effective in assisting law enforcement to solve crimes, as Mr. David Bird and the Canadian Association of Chiefs of Police said.
You will remember the compelling testimony of the Canadian Association of Chiefs of Police when they testified before us on May 2, and how Mr. Dale Weidman, inspector, stressed “. . . the importance of submissions of DNA samples into the DNA data bank to police investigations. These samples identify suspects, exonerate the innocent, link crime scenes and help determine whether a serial offender is involved.”
We learned from the CACP and other witnesses as well that from the 118 indictable offences that are reclassified from straight indictable to hybrid offences, for 74 of those, “. . . the convicted offender can be ordered to provide a DNA sample for submission to the national DNA data bank, but only if the charges were preceded by indictment.”
As Mr. Weidman said:
If these offences were reclassified and the Crown elects to proceed summarily, the offences are no longer eligible for DNA collection . . . .
He went on to say:
. . . it is not in the public interest to remove the 74 offences from possible inclusion into the DNA data bank.
He suggested that the 74 offences be listed as primary or secondary offences, which will permit a DNA order to be made, regardless of the Crown’s election to proceed either by indictment or by way of summary conviction.
The CACP’s legal counsel, Ms. Huntsman, also said:
. . . referring offenders to the judicial referral hearing will impact fingerprinting and DNA collection.
Colleagues, we further heard compelling testimony from other witnesses along the same lines. The testimony of Mr. David Bird, retired counsel with the Department of Justice, testified as an individual. His testimony was extremely convincing as well to put forward this amendment, as well as the testimony of the police of Longueuil.
And how can we forget about the recommendation our committee made in June 2017, Recommendation 24, which reads:
The committee recommends that the Minister of Justice introduce legislation to amend the Criminal Code to allow for the immediate and automatic collection of a DNA sample from any adult who has been convicted in Canada of a designated offence as defined in section 487.04 of the Criminal Code.
For all of these important reasons, I’m bringing forward this amendment.
Senator Sinclair: Just a question. Senator, if I can ask you to clarify: I believe you and Senator Dalphond are in agreement on the numbering now.
Senator McIntyre: Yes.
Senator Sinclair: So, generally, his suggestion and your suggestion will be same?
Senator McIntyre: Yes.
The Chair: According to what we heard before, as we say in French, “two strong doesn’t break.” But it was already on the record that the two of them consulted the same legal adviser to come forward with the list.
Senator Sinclair: I have a question for the department staff who are here. Have you had a chance to review these, and are there any concerns you’d like to share with us?
The Chair: Ms. Davis-Ermuth, please go ahead.
Shannon Davis-Ermuth, Senior Counsel, Department of Justice Canada: I have had a chance the review them. In the review, it appears they are adding all of the offences that are currently straight indictable offences, punishable by a maximum of five years and ten years, that are being hybridized by the bill and added to the list of secondary designated offences since, if they were proceeded on summarily, a secondary designated offence would no longer be available. That seems to be consistent.
There are two small exceptions in the way they are drafted. Under paragraph 5, amending (viii.21), adding sections 322 to 332 to the list of offences. The way it has been listed there, it would also have the effect of adding in the offence of theft under $5,000, which is not being amended by the bill.
The same thing would happen a little further down the page, at paragraph (x.11), section 354.
The Chair: Could you be more precise so that everyone understands your reservation on that section?
Ms. Davis-Ermuth: It’s another one where the bill is hybridizing. I want to make sure I get the offence correctly. It’s possession of property. Then it adds in the possession under $5,000, which is not being amended by the bill.
The other thing to note, as a drafting matter, is the way this motion has been drafted is different from the way the secondary designated offences appear in the Criminal Code. In the Criminal Code there is the section number for the offence, but also in brackets there is a short-form name of the offence — “theft” or some kind of indication. The way this is drafted might impact the way the secondary designated offences are listed in the code. The first paragraph would replace what’s already there, so it would have the effect of removing the offence notations.
I will give an example. In the Criminal Code right now, secondary designated offence, under paragraph (c)(i), it says, section 145, “Escape and being at large without excuse.” If this amendment came into the code, it would remove that description. It doesn’t change the effect of what the provision does, but it makes it a little bit harder to use. There would also be some inconsistency. A few of these paragraphs add these items to the list after the ones already in the list, so you would have a few that had the notation on the name of the offence and a few that didn’t.
The Chair: Would you suggest that as a matter of consistency within the code that the notations could be added to the list that is provided here or remove the other notation to make sure that we remain coherent? I would suggest adding the notation. That doesn’t change the objective of the amendments. That seems to me to be the proper thing to do.
Senator Gold: I think this is a matter that we could safely assume is technical and everything else is fine with this, I’m sure we could take care of it as a “toilettage” exercise. Are there any substantive concerns you have with this amendment?
The Chair: What I will do, senator, and if I may, Ms. Davis-Ermuth, is have the discussion on this amendment and determine if there is a consensus or a majority in support of it. What I would suggest is that you withdraw from the table after this discussion and make the notation so that I could put back the amendment for the final vote as totally in sync with the objective that we seek, which is to add the notation. Then we will have one vote with text that I would circulate around the table so everybody will know what we’re doing. I would feel a bit uncomfortable if we are adding language to the code that is not, as I say, coherent with the code. The code is already complex enough without adding to the complexity.
Will you agree to do that, Ms. Davis-Ermuth?
Ms. Davis-Ermuth: So you’re asking that I add the —
The Chair: The notation. Not now, but you will withdraw and you do that in the hours to come so that tomorrow we could proceed with that. You could do that with the legal adviser of Senator McIntyre and work in sync with them to make sure that there is agreement on it. That doesn’t change the substance of the amendment. It’s, in fact, the language. It is essentially to make sure the language is coherent with the code. That’s essentially the purpose of this.
[Translation]
Senator Dupuis: Senator McIntyre, I wanted to give you the time to finish your sentence. Can you explain clause 196.1 to me? I want to know what exactly you’re replacing in section 487.04 of the Criminal Code. I see a number of new offences that would replace what currently appears under subparagraph (c)(i) of section 487.04. Is that correct?
Senator McIntyre: I think we have to read it as a whole. It can get very technical if you dwell on each section. Perhaps Senator Dalphond can add to that.
Senator Dupuis: I just want to understand the two subclauses, 196.1(1) and 196.1(2) of your amendment, in which you replace sections of the definition of “secondary designated offence” in the Criminal Code, whereas, starting in subsections 3, 4, 5 and 6, you add new offences to an existing list.
Senator Dalphond: Perhaps I can give you an idea, and I’m sure we’ll be thinking along the same lines. The reason is that, in this one, we start with a section that’ll be the first in the enumeration, whereas in other clauses, we’re adding sections to an existing enumeration. Since this is the first one, we’re first replacing and adding all that. That’s the drafting technique that was adopted.
The Chair: Thank you. Other questions? Senator Dalphond.
[English]
Senator Dalphond: Ms. Davis-Ermuth, just to come back on the first things. I understand section 354 should not appear there for the reasons you mentioned, but in 322 to 332 you said there was the theft under $5,000. So we should rewrite it from 322 to — instead of 332, what we should write?
Ms. Davis-Ermuth: Sorry, I’m just taking a look.
Senator Dalphond: Just make sure that we don’t make a mistake.
[Translation]
Senator Dupuis: Mr. Chair, may I make a suggestion? As we have several amendments to deal with, may we suggest that the Senate Law Clerk examine each question and get back to us with an answer?
The Chair: The fact is there is a substantive issue here; if we have to draft a subamendment, we’ll change the text of the amendment. I would prefer that we continue open debate on this matter. The question that Ms. Davis-Ermuth asked is one that may lead us to renumber from 322 to 332.
[English]
Is Senator Dalphond’s question clear to you, Ms. Davis-Ermuth?
Senator Dalphond: I don’t particularly want the number right away, as Senator Dupuis said, but I want to understand the rationale of why we have to remove it. Please repeat it, because I missed the part about the common theft.
Ms. Davis-Ermuth: Just to start with the first one you mentioned, section 354. At clause 122 of the bill, on page 39, there it’s paragraph (a) of section 334 that is amended.
The Chair: Yes, 39 at the bottom of the page, it’s line 27. Is this what you have in the bill, Ms. Davis-Ermuth?
Ms. Davis-Ermuth: It is. I apologize, because we were reviewing so many sections so quickly.
The Chair: I know.
Ms. Davis-Ermuth: I’m just trying to —
[Translation]
The Chair: As the French saying goes, “A cat can always find her kittens.” I think we can find the text of the section you’re referring to.
Senator Dupuis: There’s also the saying, “A cat could lose her kittens.”
[English]
The Chair: So it’s at the bottom of page 39:
(a) if the property stolen is a testamentary instrumentor the value of what is stolen is more than $5,000, is guilty of
Is it what you’re referring to?
Ms. Davis-Ermuth: It is, and I’m just trying to find it in the code to give the example of where the reference to where the value is under $5,000.
The Chair: I look at Senator Carignan, and he thinks it should be a question asked at the bar exam.
Senator Dalphond: Maybe we could suspend that provision and then we talk with them and come back.
Ms. Davis-Ermuth: Senator Gold helped me out, which I greatly appreciate.
The Chair: Do you have an answer? Well, if you don’t have an answer, of course, we can’t wait too long.
Ms. Davis-Ermuth: I apologize.
The Chair: It delays the progress of our work. What I would suggest then, Ms. Davis-Ermuth, is that you know what we’re looking for, so I will stand the further discussion on this section of the code in relation to this amendment introduced by Senator McIntyre.
If you want to come back tomorrow with the answer to the question that was raised, and to the question in relation to 322 to 332 that has also been raised by Senator Dalphond with the proper notations to all of those sections, that would allow me to put the amendments back for discussion. Then we would move on with the discussion on the vote and extend the committee.
Ms. Davis-Ermuth: Thank you, chair. I apologize for the delay. I do have the answer with respect to section 334. However, it would be beneficial, while we’re taking the time to do the notation, to be able to look at the other provisions that do the same thing to make sure we get them correctly.
With section 334, paragraph (a) deals specifically with where the value of what is stolen exceeds $5,000. That’s the one being hybridized by the bill. The way that the amendment is written, though, where it just refers to section 334 generally, it would also encompass paragraph (b).
My suggestion would be if the intention of this amendment is to maintain secondary designated status for the offences where it already exists —
The Chair: It is the intention, indeed.
Ms. Davis-Ermuth: — to parse out, for those few offences I had mentioned, which specific ones are being hybridized so the net isn’t broader than that.
The Chair: I think you understand the purpose of the honourable senators to make sure that what we are doing is in sync with the coherence of the language and the coherence of concepts included in the sections involved there so honourable senators understand very well what they are being called to approve as an amendment. Okay?
Ms. Davis-Ermuth: Yes, thank you.
The Chair: Since it is a new section that we add to section 196, on the other hand I think it would be advisable also to consult with the law clerk to make the proper corrections so there is an agreement between the two senators that this is totally in conformity with their intention.
Senator Sinclair: I was going to suggest that the law clerk be consulted before the wording came back, but you did that.
I wanted to indicate to Senator McIntyre that generally we, on this side, agree with the proposed amendment in the motion.
The Chair: As I understand where we stand, if I may say that, there is an agreement on both sides of the table on the objective of this amendment. It’s essentially a matter to make sure that the language of the amendment is totally coherent with the code as it stands now to be sure that what we’re adding is not creating more difficulty to understand the code and it remains coherent with the overall objective of each of the sections dealt with in the amendment.
Is it clear, honourable senators?
Hon. Senators: Agreed.
The Chair: Ms. Davis-Ermuth, I would suggest that you run away —
Ms. Davis-Ermuth: Happily.
The Chair: — and that you work diligently to meet our objective. We appreciate very much the work that the department does in relation to this.
Ms. Davis-Ermuth: Thank you.
The Chair: Thank you so much.
Senator McIntyre: I want to thank all colleagues for their input into this, and I think this is something we have to work on together.
The Chair: There is ample support for that amendment, Senator McIntyre. I think we have heard compelling evidence from all sources and witnesses we had around this table. Thank you.
Shall clauses 197 to 224 carry?
Some Hon. Senators: On division.
The Chair: On division.
Then we move on to section 225. Before I call section 225, of course, I have to see the clock. Are the honourable senators available for one more? No.
[Translation]
Senator Boisvenu: I’ll be talking about this amendment. It concerns reversing the burden of proof in domestic violence cases. It would take me at least 10 minutes to present my argument.
The Chair: All right. I understand.
Senator Boisvenu: If a discussion follows, we’ll be here until late this evening, unless you agree.
[English]
The Chair: Thank you, honourable senators.
[Translation]
With the honourable senators’ good will, we will resume our discussion tomorrow morning at 10:30 a.m. We will continue with clause 225 at that time. We will also have the report presented by the Honourable Senator McIntyre, who would add clause 196.1 to the Criminal Code.
Honourable senators, thank you very much for your work this afternoon.
(The committee adjourned.)