THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Friday, December 10, 2021
The Standing Senate Committee on Legal and Constitutional Affairs met with videoconference this day at 1:02 p.m. [ET] to study the subject matter of clauses 1 to 5 contained in Bill C-3, An Act to amend the Criminal Code and the Canada Labour Code.
Senator Mobina S. B. Jaffer (Chair) in the chair.
The Chair: Honourable senators, I’m Mobina Jaffer, a senator from British Columbia and I have the pleasure of chairing the committee today. We are conducting a hybrid meeting of the Standing Senate Committee on Legal and Constitutional Affairs.
[Translation]
Should any technical difficulties arise, particularly with respect to interpretation, please let the clerk know, and we will do our best to get the issue resolved.
[English]
We will do our best to ensure everyone who wants to ask a question to witnesses gets a turn, and in order to do so, I ask senators to try to keep their questions and preambles to questions brief.
Senators, I know that most members will have questions for our panellists, so I ask that you only signal to the clerk through the Zoom chat if you do not have a question. If you are not a member of the committee, please signal to the clerk if you have a question, and I will try my very best to accommodate you. But I do anticipate time being short.
Senators, you will have four minutes each to question the minister.
[Translation]
I would like to take a moment to introduce the committee members participating in today‘s meeting.
[English]
We have Senator Boisvenu, who is the deputy chair. We also have Senator Campbell, Senator Carignan, Senator Clement, Senator Cotter, Senator Dalphond, Senator Dupuis, Senator Anderson, Senator Pate, Senator Simons, Senator White, and today the sponsor of the bill will join us, Senator Yussuff.
Senators, today we undertake our study of the subject matter of clauses 1 to 5 contained in Bill C-3, An Act to amend the Criminal Code and the Canada Labour Code.
Congratulations, Minister Lametti, on your election and also being appointed as the Minister of Justice and Attorney General of Canada.
Minister, we are particularly happy that you will be working with us again because we have found you to be very cooperative. You’ve always been prompt in responding to our queries and have made yourself available, and you have also made documents available. We look forward to working with you again in this session.
Minister David Lametti is joined by Laurie Wright, Senior Assistant Deputy Minister from the Department of Justice Canada; and Joanne Klineberg, Senior Counsel, Criminal Law Policy Section.
I would remind senators that the minister is here to speak on clauses 1 to 5 of Bill C-3.
Minister, you have the floor, to be followed by questions.
Hon. David Lametti, P.C., M.P., Minister of Justice and Attorney General of Canada: Thank you, senator. It’s good to be with you here today. Thank you to Laurie Wright and Joanne Klineberg as well for joining me.
I appreciate the invitation to appear before this committee to discuss Bill C-3, An Act to amend the Criminal Code and the Canada Labour Code. As you have stated, I will be focusing on the criminal law proposals.
The immediate context of these proposals is the COVID-19 pandemic and the response of a small number of Canadians who do not agree with various public health measures put in place by provincial authorities. While these public health measures are evidence-based, reasonable and necessary to protect life, health and our economic recovery, some disagree with the measures in place to protect us from COVID-19.
Many of these people have been making their views known through peaceful protest. Expression, persuasion and encouragement are not criminal matters, either under the current law or under the proposed amendments. However, a small number of these people have crossed a line and have made threats against health providers, including death threats. They have incited others to violence, obstructed passage into health facilities and used threats to intimidate health workers and health seekers into retreating from their responsibilities and health care choices.
These are the kinds of acts that the existing criminal law and the proposed measures in Bill C-3 target. The bill would protect and recognize the important contributions of all health sector workers who keep us safe, from doctors and nurses and personal support workers to those who keep our health facilities clean and safe, and the many in between.
[Translation]
Obviously, the issue is particularly troubling given that we are in the midst of a pandemic. These behaviours are not new, however, and have been impacting the health sector for quite some time.
Studies have revealed worrisome findings — health care workers and those who assist them have faced unacceptable rates of workplace violence, even before the pandemic. Staff at sexual health and abortion clinics all over the country have been subjected to intimidation, violence and even attempts on their lives.
Honourable senators, the measures proposed in Bill C-3 are designed to keep our health care heroes safe and protect patients. After all, our health depends on it.
[English]
The Criminal Code contains a wide range of offences that can apply to acts done and what a person intended when doing those acts. The measures proposed in the bill seek to enhance these protections in two main ways. First, they would introduce two new specific offences. One would be a new offence to protect health workers and those who assist them, as well as those seeking health services, from being intimidated into retreating from the performance of their duties or from obtaining a health service.
The enactment of a dedicated intimidation offence applicable in the health context would be coupled with an increase in its maximum penalty from a maximum of 5 years’ imprisonment for the existing general offence of intimidation to 10 years for the new proposed offence. This recognizes the harms to those threatened, to the health care system and to those who may be unable to obtain services as a result of these acts of intimidation.
I would remind honourable senators that this is a maximum and there is no minimum. This ensures judges have the discretion to impose a penalty based on the severity of the situation within a larger available range.
The second offence would prohibit obstructing or impeding a person in accessing a health facility. This behaviour is already captured by the offence of mischief to property and would also have a maximum punishment of 10 years in prison.
[Translation]
The second series of measures amends aggravating sentencing factors accordingly. For years, the health care sector has been calling on Parliament to adopt a similar measure, which would take into account the severity of an attack against a health worker in the performance of their duties. That was also one of the recommendations in the 2019 report of the House of Commons Standing Committee on Health entitled Violence Facing Health Care Workers in Canada. I note that Canadian courts have already recognized this as an aggravating sentencing factor under common law.
The measure being proposed is broader than what had been recommended previously. It would apply when a health care worker was the victim of any offence — not just assault — in the performance of their functions. Offences could include forcible confinement, vandalism and larceny. The criminal victimization of a health care worker in the performance of their duties would likely infringe on their ability to function for a period of time. Accordingly, the aggravating factor proposed is designed for broad application.
The commission of an offence that had the effect of impeding a person from obtaining health services would also be an aggravating sentencing factor. This factor is related but distinct from the aggravating factor for offences committed against health care workers. It captures the consequences of crimes on people in need of health care.
[English]
There may be a perception in some quarters that the amendments aim to or would have the effect of criminalizing protests around health facilities, whether against COVID-19-related public health measures, abortion or other matters. This is entirely untrue. The measures proposed have been carefully designed to avoid this consequence and to protect the right to nonviolent, peaceful protest. Specifically, the intimidation offence is limited to behaviour done with intent to provoke a state of fear. This can be equated to violence or threats of violence, which is clearly unacceptable and does not benefit from Charter protection.
The obstructing access offence, on the other hand, does have a potential application to protest activities that block people from getting to or entering a health facility. So consistent with existing criminal law, this offence is expressly subject to an exclusion for purely communicative behaviour, such as strike action or peaceful protests, which the courts have interpreted as applying when the communication was peaceful, lawful and had only a minor impact on access.
I am therefore confident that these proposed offences respect Charter rights. I look forward to answering your questions. Thank you.
The Chair: Thank you very much, minister. We will now go on to the first question. We will go to the sponsor of the bill, Senator Yussuff.
Senator Yussuff: Thank you, minister, for the opportunity to ask you a couple of questions. I think you may have resolved this just now, but in your remarks you referred to the communicative defence in the legislation, which I understand will protect the right to strike. Could you expand how this bill was worded to enshrine the right that is in this legislation?
Mr. Lametti: Thank you, senator, and thank you for your leadership on this particular bill. As I had said, in particular, the offence of obstruction or blocking or impeding is one that is expressly tailored with the right to communicative action protected, so the blockage is limited by that. We’re following the jurisprudence there quite clearly, and it protects the right to strike. It protects the right for lawful activity. As I said in the speech, it’s precisely because of the fact that it was only a minor impediment, and we value these rights; we value the right to strike; we value the right to free speech and to make those public statements, if you will.
Let me put it another way. There is a tolerance — and there has to be a tolerance — for peaceful and minor delay, I suppose, in getting to your place of work, if someone is peacefully expressing right to strike or some other political or communicative thing that they want to convey. It’s where the blockage is complete — so it’s no longer minor, and it’s where the person therefore can’t get to work in order to provide health services or a patient can’t get in — that the component is triggered.
Senator Yussuff: Could I ask a quick follow-up question that I think is equally important for the minister to elaborate on?
The Chair: Yes.
Senator Yussuff: Minister, when you describe health care workers in the context of the legislation, some of us have a notion as to what that is — a doctor, nurse, technician, physiotherapist. But as you know, in a health care facility, there are a lot of people who actually make those facilities operate. Custodians are an example. Other people provide food services. They are all part and parcel of how a health care facility operates. If one of those people should encounter violence, does this legislation envision that they are protected under this legislation and thereafter under this legislation?
Mr. Lametti: Thank you for the question, senator. Indeed, I agree with you completely that health is a team approach, and it includes everybody who works in that facility or helps support that facility. As you have said, it’s custodians, people who clean, as well as personal assistants and doctors and nurses, obviously. So, yes, they are included. The language of Bill C-3 makes it clear that the intimidation offence applies to regulated health professionals and to those who help provide those health services, so that includes everybody.
The aggravated factor in sentencing applies when the victim was providing health services, including personal care services. We’ve intentionally made the provision to apply to anyone providing health services, and we’ve not limited it to health professionals. I think it’s quite clear that it is meant to apply to both.
Senator Yussuff: Thank you, minister. Thank you, chair, for the opportunity to raise these questions. Thank you very much to the committee for allowing me to be a part of this.
[Translation]
Senator Boisvenu: Welcome, minister. It’s a pleasure to have you with us as we study this bill.
When you drafted the bill, what communications did you have with the Quebec government? As you know, Quebec was the site of a number of protests outside hospitals. The Government of Quebec urged the federal government to do something. What communications did you have with Mr. Legault‘s government?
Mr. Lametti: Thank you for your question, senator. We took action within our jurisdiction, that is, amending the Criminal Code. Provinces are free to respond at any time [Technical difficulties] property and civil rights. A number of provinces have put protections in place, including bubble or exclusion zones outside hospitals. That is wholly within their jurisdiction, whereas Criminal Code amendments are the jurisdiction of the federal government. These measures were thought out with our areas of jurisdiction in mind and in harmony with the provinces. This legislation was an election campaign promise.
To answer Senator Boisvenu’s question, I would say that we designed the changes to the Criminal Code in accordance with federal jurisdiction and in harmony with the powers of the provinces to take action in their domain, so property and civil rights.
Senator Boisvenu: I understand that, minister, but my question has to do with the fact that the powers of the provinces are limited to issuing notices of violation. Were the provinces the ones who asked you to make it a crime for people to protest outside hospitals?
Mr. Lametti: In some cases, yes, but it was really those who work in the health care sector who wanted this. On a number of occasions, we saw situations in provinces where protests turned quite negative. That is why we decided —
Senator Boisvenu: I take it, then, that the federal government has acted unilaterally in bringing forward this legislation and criminalizing people who protest outside hospitals. Is that right?
Mr. Lametti: First of all, senator, criminal law is under federal jurisdiction, as you know.
Senator Boisvenu: I realize that, but this move —
Mr. Lametti: Second of all, we are in regular contact with the provinces, namely with the ministries. My department, the Department of Justice, is in constant contact with its ministry counterparts in Quebec and throughout the country.
Senator Boisvenu: On a political level, you didn’t engage in government-to-government discussions before deciding to criminalize people who protest outside hospitals. Is that correct?
Mr. Lametti: Discussions are always happening —
Senator Boisvenu: Yes, I realize that is the case at the working level, but I mean between you and Quebec’s justice minister. There were no discussions at that level.
Mr. Lametti: I, personally, did not have any discussions, but as I said, we are acting within our jurisdiction.
Senator Boisvenu: All right. Thank you, minister.
[English]
Senator White: Thank you, minister, for being here today. I’m going to go quickly through this. I have two questions at the end.
In September, Toronto police identified that they would respect the right to peaceful, lawful demonstrations, but hospital operations and public safety cannot be disrupted and that anyone, where necessary, would be arrested and charged, if warranted, as a result of people protesting and intimidating health care workers.
When I was police chief in Ottawa, we gave similar advice to protesters who had threatened to protest the roadway to the General Hospital, that they would be arrested. We would have 350 protests a year in the city of Ottawa.
I know that the Criminal Code already has the offences of intimidation and uttering threats. That is why we were already able to say what we said, and that is why Toronto police were able to say in September what they said.
I’m trying to get my head around why we didn’t just look at the offences that were available and increase the penalties to 10 years or, as a real deterrent, maybe even bring in a mandatory minimum, whether that be a fine or otherwise, since I would think that to most people participating, a mandatory minimum would be a greater deterrent than a maximum most of them will realize they will never get.
Mr. Lametti: Thank you, senator. Those are great questions. You are correct in that there is a general intimidation offence. I would add that there are also mischief offences under the Criminal Code.
First of all, the protests were happening in the COVID context, but we had also been told on a number of occasions, and in particular in that House of Commons committee report in 2019, that those provisions were insufficient and that, for whatever reason, police and prosecutors weren’t using them.
What we’re doing in increasing the penalty, and in making the penalties more precise and having a more high-profile pitch with respect to specific legislation, is hopefully increasing the tool kit that police officers and prosecutors have in moving forward with prosecutions. As I said, we’ve increased the penalty.
The other thing I would point to, Senator White, is that we do this in one other context, which is judicial actors. People who participate as lawyers, as witnesses, as jury members, are also protected by a similar super-protection under the Criminal Code. We took inspiration from that model with respect to health care workers, given what they had asked for, and the COVID crisis.
With regard to minimum mandatory penalties, we probably have a difference in philosophy there. We did increase the maximum, but a judge has the ability to look across a range of penalties in order to make the punishment fit the crime.
Senator White: Thank you for your responses. The behaviour of these people is nothing less than disgusting. I want to start with that. I do believe the police take it seriously, and I think the plan they had in place probably had the effect of putting a damp cloth on top of many of these protests.
If they are going to protest, I’m not sure that new legislation will matter unless there is an immediate impact. I’m the first to say we have gone too far with mandatory minimums, particularly when it comes to jail terms, but I do think fines have a great effect on people, because the vast majority of people involved in these protests have the wherewithal to pay fines. I can tell you that whether it’s seizure of vehicles as a result of failure to pay fines or a vehicle used in a protest being able to be seized, a financial impact often has a greater effect than almost anything else you can do to these protesters.
I’m throwing it out there for interest’s sake as much as anything else right now because I’m not sure that the police will actually do anything different. I think they are sick and tired of this as well and would act if it happens.
I appreciate your response, and I do appreciate you being here today, minister. Thank you.
Mr. Lametti: Thank you, senator. Just to add, I’m not going to disagree with anything you have said. I’m going to echo it.
This is a hybrid offence, so it hopefully will encourage prosecutors as well, depending on the circumstances, to proceed by way of indictment or by way of summary if that’s a more appropriate way to go. It also leaves open the possibility for provinces to use their property rights to create exclusion zones and use fines, for example. There’s a dovetailing there that — [Technical difficulties]
[Translation]
Senator Dalphond: I want to begin by congratulating you, minister, on being reappointed as Minister of Justice and Attorney General of Canada. I know most of the committee members who were here in the last session of Parliament were pleased to work with you. We look forward to that same level of communication this session.
My question is somewhat along the same lines as the questions Senator White and Senator Boisvenu asked. I’m wondering about the need for an offence specifically tied to health care workers, and I have two examples for you. First, we’ve seen cases where certain people, certain groups, who are against the vaccine have held protests close to schools, even preventing children from entering and parents from dropping their children off without taking one of their flyers. That sort of obstruction or interference is not covered by the legislation, so law enforcement has to rely on the public mischief provision.
Second, we’ve seen protesters gather near abortion clinics and use loudspeakers throughout the day to play Bible passages or belt out messages telling those entering the clinic that what they are doing is murder, that they are committing a sin, that they are going against the will of God and so on. That happens a lot in the U.S.
The staff have to listen to that disturbing noise all day long. Clinics have even had to relocate. If I understand correctly, that type of activity is not covered by the bill, which applies only to individuals who obstruct or interfere with access to a place, not to the conditions people inside the building have to work under. In that situation as well, the provision that applies will still be section 430, which covers mischief.
In short, doesn’t that show that the offence being created through this bill may not be all that useful?
Mr. Lametti: Thank you, senator. It will be a pleasure to work with you once again, for an indeterminate period, which I hope will last a few years at least.
Clearly, with this bill, we are targeting health services. You’re right that protests are held in other places as well, but the offence for intimidation in general is still there and could be used in those cases.
We wanted to send a clear message, especially to those who work in the health care system and those who wish to access health services: they are protected when they go to work in a hospital or clinic, or need to access services provided in such an institution.
As for your second question, it is true that it’s always a balancing act. At what point does the question arise? In other words, is access being blocked? Is there an obstruction? We are talking about a Charter-protected right: the right to communicate, to demonstrate and to take part.
At what point does an act of vocal expression obstruct access? At some point, the offence covering intimidation or obstruction could be applied, but the determination would always have to be based on the facts.
I think we are adding something significant with these two proposed offences and the aggravating sentencing factors. It carries more weight, if you will. Is it going to prevent all communication-based behaviours? The answer is no. The application will always be determined on the basis of the facts.
Senator Clement: Good afternoon, Mr. Lametti. It’s a pleasure to meet you via Zoom today.
[English]
I have just come from a meeting of the Black Parliamentary Caucus and I met your colleague Minister Hassan. We talked about the fact that the Black History Month theme this year is likely going to focus on health care workers, and Black health care workers in particular, as we know that community is racialized. It is interesting. I’m wondering what you would say to Canadian residents who are concerned about this legislation from the perspective of racialized Canadians seeking health care, and whether this is something that they should worry about. Will they be adversely impacted? Will they be targeted as the people who will be charged with these offences because the health care system for some rationalized Canadians is perceived as a hostile environment? So what would you say to those Canadians?
Mr. Lametti: Thank you, senator, for the question. It is an important one. As legislators and public figures who have a duty to listen, we have seen and heard from rationalized Canadians who have said precisely what you have said — they don’t trust the system or they don’t feel treated the same way by the system. Those are things that we have to work on, and we have a duty to work on. And with the provinces in particular, we are trying because much of this does fall into provincial jurisdiction. We are sending out a message on fighting systemic racism in areas of federal jurisdiction that hopefully will be able to have a positive impact working with the provinces, as well as making resources available.
I would say to those people that, whether they be people who seek services in the health care system, or whether they be the large number of Black and rationalized Canadians who work within the health care system, this law will help them by focusing on the kinds of behaviour that we are trying to eradicate. That includes intimidation of anyone who works in the health care system or blocking access to those services; it will be able to help people who work in those systems, Black and racialized Canadians who work in those systems, but also those patrons who do decide to put their trust in the system. I think this is yet another way to help to build that trust.
Obviously, it is going to take work and improved attitudes on the part of people to examine their own behaviour and see if they are doing something that is actually having a racist impact, even though they may not be intentionally acting in such a manner. Their actions may have those kinds of consequences. So we need to work on that, identifying the elements of systemic racism and rooting it out.
Senator Pate: Thank you, minister, for joining us. I join my colleagues in congratulating you on your election and your appointment as Attorney General and Minister of Justice. It may not come as a surprise to you that I for one am happy that there isn’t a mandatory minimum penalty attached to this offence. And your own research in the Department of Justice reveals that it is the swiftness and certainty of response more than the length of time that leads to the deterrent effect. I commend you on that.
I do have a question, though. Given my colleagues have asked the first part of the question I had, I would like to focus on the defence. The offence requires intentionality. That’s clear. The defence sounds almost superfluous when it indicates that if someone is unintentionally just sharing information, they would be protected and would have a defence to this provision. And so it leaves me to question, would this preclude the application to anyone charged except, save, those who have significant resources and legal representation who might be able to try and mount a sufficient case to argue that defence?
You have already been asked a bit about the second part of my question, but I would like to specifically ask it. Why did you not consider a bubble zone-type of approach, a more regulatory type of approach, rather than adding another provision to the Criminal Code?
If you could expand upon that, please, it would be very helpful. Thank you.
Mr. Lametti: Thank you, senator. Let me answer the second part first because, in many ways, it’s easier. The bubble zone is more likely to fall under the rubric of property and civil rights, which is under provincial jurisdiction. I suppose you could criminalize — and it is certainly something that we thought of — breaching a bubble zone. But even there, you would then have to build in a defence, as we have done for legitimate kinds of protest activity, communicative activity. Again, we don’t want to touch the right to strike. We don’t want to touch the legitimate rights of Canadians to demonstrate or make their opinions heard.
So we’ve chosen, I think, legitimate and effective means under federal jurisdiction, under the criminal law power. And it works well with the provinces that have already, in some cases, created bubble zones to then work in a harmonious fashion. So we stuck to our lane, as it were, in order to not only get a better result but then also not entrench upon what the provinces might do.
Criminal Code provisions have a mental element and they have an actus reus element, so a mental part and physical part. So there is a mental element to all this because we have in our criminal justice system the baseline that we punish intentional activity. Now, there are ways to punish unintentional activity; provinces can do that with a bubble zone, for example, or a fine or something like that. However, because criminal offences are serious, we do have a mental element.
Now, the mental elements are particular, and in the second case it’s obstructing access, and there are ways to determine the mental element and determine intention by the activity that is there. Sometimes there are presumptions in place and other things. So I don’t think that it is as onerous on that side as one might think.
Then with respect to the intimidation offences, the mental element is intimidation that provokes fear to the extent the person is afraid to do their job or is impeded from doing their job, and that is a reasonably standard element fitted in this particular case to the circumstances.
Again, police officers who investigate, prosecution officials who prosecute and then ultimately judges who may have to determine are used to working within these parameters, so I think it works well, or will work well once it’s passed.
The Chair: Thank you, minister.
Senator Simons: I have two questions, one practical and one philosophical. From a practical perspective, would this legislation apply outside a facility like a commercial drugstore or outside a community hall that may be a pop-up clinic for vaccination or testing, and would it apply to a health care worker being intimidated in their own private home?
My second question, though, is a more philosophical one. Intimidation and the provocation of fear are very much in the eye of the beholder. It is one thing to be screaming abuse at parents taking kids into a clinic, which would be very intimidating to a small child but perhaps not to an adult. I might be intimidated if I were a young woman seeking a termination of a pregnancy if somebody was standing and taking pictures of me and was going to post those pictures on social media.
You talked about the mental element, but it seems to me that this legislation requires you to know something about the feelings and the mind of the person being intimidated. At what point do we go from physical intimidation to emotional intimidation? And is that a tricky line to walk?
Mr. Lametti: Thank you, senator. Great questions, as always. It is a tricky line to walk. The criminal justice system does it all the time in the sense that whenever we’re trying to determine the mental element there is always a subjective component and there is always an objective component. There are various objective standards, but they almost always seem to deal with, also, subjective perceptions and facts. We are, I think it is fair to say, treading the usual ground with respect to criminal law offences, and many of them will be determined on the facts as you rightly hint in the philosophical part of your question.
With respect to various kinds of clinics, if it is a clinic offering health services, our thinking is it will be brought under this legislation. So yes, it applies to hospitals and clinics. It also definitely applies to health clinics that provide abortion services. And it probably, I think it’s fair to say, would apply to a pop-up clinic.
It probably would apply to a pharmacy to the extent that the pharmacy is doing vaccinations; I mean, that is providing a health care service. If the pharmacy were not providing vaccinations but merely giving out the usual prescription drugs and selling other products, then it might not. But if it’s providing health care services, my understanding is that it will be covered.
I am looking at Laurie Wright and Joanne Klineberg in case they have precision on that, but that’s my understanding.
Senator Simons: And someone at their home? Because we’ve heard stories of health care workers being threatened online, protesters coming to houses, but also, more importantly, people posting their photographs and that kind of thing.
Mr. Lametti: It definitely applies online, and it was specifically conceived to apply to online.
Senator Simons: Okay.
Mr. Lametti: Given what I said before, if a doctor or nurse is providing health care services through their home at a clinic, say in a remote location or something like that, it would definitely, I think, be covered. If it were merely the health care provider’s residence, then probably would have to resort to [Technical difficulties] intimidation that is under the code.
[Translation]
Senator Dupuis: Welcome to the committee, minister. You said you wanted to continue the cooperative working relationship we built during your first term. You developed a habit that we were especially fond of: for each bill involving your department, you provided the committee with information on the gender-based analysis plus that had been conducted as part of the examination of the bill. Do you still wish to keep up that cooperation, and can you tell us whether the analysis was carried out?
Mr. Lametti: Yes, the analysis was carried out, and yes, I wish to continue that tradition. The analysis has to be drawn from the memorandum to cabinet. There is a way to do that. We did it, and yes, we will do it for the committee.
Senator Dupuis: Am I to understand that one of the reasons why you opted to create two specific offences in relation to health care workers and those who work in the health sector as regards access to health care institutions is that these are situations where people are highly vulnerable?
In other words, we aren’t talking about someone who is walking down the street; we aren’t talking about a situation that corresponds to the current intimidation or threat-related offence. We are talking about an environment where people are especially vulnerable, whether temporarily or on a permanent basis, such as in residential and long-term care centres. We have heard many complain that they are being held hostage, but they are also being held hostage in particularly difficult circumstances involving people who are vulnerable.
Mr. Lametti: The answer to your question is yes, on all counts. Yes, this is a setting where people are vulnerable, whether it be the workers who feel vulnerable or those trying to access services. In some cases, they are sick. The pandemic has added a distinct layer to this issue, with protests that were especially negative and threatening. Not only is this a setting where people are vulnerable, but you also have to take into account the specific environment caused by the pandemic.
Senator Dupuis: I may be extrapolating here, but isn’t one of the factors that you were able to take into account the reality that many of the workers in the health sector are racialized and already have to cope with social circumstances that are especially challenging? Their situation is exacerbated by the nature of the work they do, particularly in this COVID-19 era.
Mr. Lametti: Absolutely. We wanted to make the setting safe so that people felt comfortable that they could receive the care they needed or go to work in a peaceful and safe manner. This legislation will go a long way toward rebuilding the confidence of health care system participants.
Senator Dupuis: Thank you.
[English]
Senator Cotter: Greetings and welcome, Minister Lametti. Congratulations on your re-election and your reappointment to the position of Attorney General and Minister of Justice, a position to which nearly ever legal academic in the country surely aspires.
Let me also say that the Charter Statement we received with respect to this bill was helpful, and, if I may just qualify that, more helpful than some we’ve received in the past.
This is a serious matter, and I applaud the Government of Canada’s efforts to address the situation in a serious way. But I think that I would be correct in understanding that the enforcement will rest within provincial prosecutorial services and provincial and municipal policing bodies.
I would have thought that in order to ensure this is more than window dressing and is actually a tool that will help address this serious situation in which health care professionals — particularly, and in many cases, beneficiaries of those services — would be adequately protected, you would have had a reasonably clear understanding and confidence that the provinces needed and would actually act with this tool being made available to them.
That’s my first question, and then I have a second, if I may, afterward about some of the specifics of its enforceability.
Mr. Lametti: Thank you, Senator Cotter, for your kind words at the outset and also for your question.
We work at the federal level with the Criminal Code and we work within a system where we promulgate changes to the Criminal Code. The majority of those changes are applied by provincial police services or, in some cases, the RCMP acting under contract from the provinces, and often the provincial courts, even with the Criminal Code, are the court systems which are used and then the provincial prosecution services.
The system generally works well, so I don’t have any doubt that police forces across Canada, whether provincial or large municipal forces like Toronto and Montreal, will hesitate to apply this. We’re sending a clear message out to the police that this is an activity that we are targeting with specific legislation, and we’re sending out a specific message to the provincial prosecution services that this is an important set of tools that are now to be used particularly in this context but also to protect health care workers generally. They seem to have worked reasonably well for people who are actors in the judicial system, which is, in part, the model for what we’re doing today.
I have nothing but confidence that the system will continue to function well with respect to these particular changes.
Senator Cotter: In terms of application of the provisions, one can imagine a single person outside a health care facility with a sign or calling out a viewpoint, “Do not inject my kids,” or whatever it happens to be. And that would be one message that presumably tries to convey, “Don’t deliver the health care service.”
But then you get 100 people or 500 people with similar signs, calling out the same kind of thing. The intimidation factor, the fear factor, is generated perhaps by the number of people conveying the message, and it strikes me that we would not think about prosecuting the one person who had the sign and was calling out, but we would have a lot more concern about the 500. And it strikes me that this legislation is awkwardly responsive to that kind of a situation. Are you able to comment on that?
Mr. Lametti: That is a fair comment, Senator Cotter. The context will be determinative. If one person is holding a sign that says, “Kill doctor so-and-so because she is the one who is giving out a Pfizer or Moderna vaccine,” or “Kill doctor so-and-so because he is providing abortion services,” that probably catches us on the intimidation side, or if the person comments online and names the doctor or nurse.
At a certain point, numbers will be indicative as well, and it will be something that is determinative on the ground. It is particularly conceived with both the intimidation offence and the blocking offence. At a certain point, you will have to police on the ground. Prosecutors will have to make a call with respect to how the factors fit together and how to proceed. Also, there will be a decision whether to proceed by summary or by way of indictment.
All of these factors will be a part of the determination of the way forward for both the police and prosecutors.
Senator Cotter: Thank you.
The Chair: I have a question, minister, and it has to do with the Charter. Freedom of speech is protected by section 2 of our Charter. As you also know, the Charter allows the government to enforce reasonable limits with regard to hate speech, obscenity and defamation. That said, minister, do you intend to include provoke fear and/or impeding a health care professional from doing their job as hate speech, obscenity or defamation?
Mr. Lametti: Thank you, senator, for the question. It could be all of those, but it doesn’t need to be. Intimidating speech, in and of itself, provokes a certain kind of fear and therefore isn’t protected speech in that sense under section 2 of the Charter, so we feel that we are compliant with the Charter in that regard.
With respect to blocking access, there is a well-developed defence of communicative activity under the Criminal Code, which is meant precisely to respect the Charter and to respect, in particular, the right to demonstrate and the right to strike. And we have incorporated that precisely into the wording of that provision in order to evoke that provision, thus making it consistent with not only the Charter but also the various exemplars of jurisprudence as they interact with the Criminal Code.
The Chair: Thank you, minister. We have almost gone an hour. But we have three follow-ups, if you could please stay a little longer. Is that possible, minister?
Mr. Lametti: We can do three quick questions, but they do have to be quick.
The Chair: Thank you, minister, for your indulgence. What I will suggest, senators, is that you ask all three questions and then the minister will answer them all.
Senator White: Madam Chair, I think I have my answer and I will possibly raise an amendment in the Senate instead.
Senator Pate: Mine was just additional clarification, minister, on how we would ensure that the defence is not used by those who have the knowledge and financial means to say, “This wasn’t my intention. I was just planning to exercise my freedom of speech and share information with people coming in.”
[Translation]
Senator Dupuis: Minister, can you tell us, if you haven’t already, whether you plan to initiate talks with the provinces about enforcement?
I imagine that you want the provinces to not only enforce these measures, but also take action within their jurisdiction to complement what you have tried to build with this legislation.
Mr. Lametti: Senator Dupuis, I will start by saying that, yes, we have had discussions with the provinces about enforcing the measures. Once the legislation is enacted, we will sit down with the various ministries to work out the technical side.
Some provinces already have their own legislation, and it is their decision as to whether they want to exercise their jurisdiction as it relates to property and create exclusion zones for hospitals and clinics.
[English]
Senator Pate, there are oftentimes ways to presume the mental element based on the actions that one takes. So I don’t think it’s as simple as getting a good lawyer, simply to get out of the mental element. That being said, we do have a legal system that allows for defence, and there may very well be ways to get a lawyer in order to try to disprove the mental element, but that is true for any criminal offence. However, as I said, if you intimidate somebody online with words, if you intimidate somebody online with something you have on a poster as somebody is walking by and it is threatening enough and specific enough to cross that threshold, I think the mental element will be demonstrated by the activity itself and the state of mind will be demonstrated by the activity itself. The state of mind would be demonstrated by the activity. I don’t think you simply have a defence because you have a better lawyer.
The Chair: Thank you very much, minister. And thank you, Ms. Wright and Ms. Klineberg, for your time today. We appreciate you being here. Thank you very much.
Mr. Lametti: Thank you, everyone.
The Chair: Senators, I suggest we now proceed in camera to discuss the draft report. Is that agreed?
Hon. Senators: Agreed.
(The committee continued in camera.)