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Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue 27, Evidence - February 25, 2015


OTTAWA, Wednesday, February 25, 2015

The Standing Senate Committee on Legal and Constitutional Affairs, to which were referred Bill C-452, An Act to amend the Criminal Code (exploitation and trafficking in persons); and Bill C-279, An Act to amend the Canadian Human Rights Act and the Criminal Code (gender identity), met this day at 4:15 p.m. to give consideration to the bills.

Senator Bob Runciman (Chair) in the chair.

[English]

The Chair: Welcome, colleagues, invited guests and members of the general public who are following the proceedings of the Standing Senate Committee on Legal and Constitutional Affairs. For the first hour of today's meeting, we are continuing our deliberations on Bill C-452, an Act to amend the Criminal Code, (exploitation and trafficking in persons), which proposes to provide consecutive sentences for offences related to trafficking in persons and create a presumption regarding the exploitation of one person by another. The bill would also add the offence of trafficking in persons to the list of offences to which the forfeiture of proceeds of crime apply.

This is our second meeting on this legislation.

As a reminder to those watching, these committee hearings are open to the public and also available via webcast on the sen.parl.gc.ca website. You can find more information on the schedule of witnesses, on the website, under "Senate committees.''

Our witness today, appearing by video conference from Vancouver is Mr. Tony Paisana, Executive Member, Criminal Justice Section, Canadian Bar Association.

Mr. Paisana, welcome. I appreciate your attendance here today and your testimony. You have five minutes for an opening statement and then we will proceed to questions. Sir, the floor is yours.

Tony Paisana, Executive Member, Criminal Justice Section, Canadian Bar Association: Thank you for the invitation to present the Canadian Bar Association's views on Bill C-452. The CBA is a national association of over 36,000 lawyers, students, notaries and academics. An important aspect of our mandate is seeking improvement in the law and the administration of justice. Those aspects of our mandate bring us to you today.

Our submission on Bill C-452 was led by our National Criminal Justice Section. I'm an executive member of that section whose membership has a balance of Crown and defence lawyers from all parts of the country.

Personally, I practice predominantly in criminal defence in the Vancouver and surrounding areas. And from time to time I also act as Crown Counsel.

The CBA section's comments will be focused on the presumption aspect of Bill C-452 as it relates to the human trafficking offence contained in the Criminal Code.

Human trafficking is appropriately one of the most serious crimes in the Criminal Code and in some circumstances carries mandatory minimum penalties of 5 and 6 years imprisonment. The offence is currently proved where it is established beyond a reasonable doubt, first, that the victim has been exploited, that is, forced to provide labour or service by way of threats; second, that the accused facilitated or exercised control over the victim in one of the various ways described in code; and third, that that facilitation or control was for the purpose of exploiting that person.

This bill would create a presumption whereupon proof that the accused lives with or is habitually in the company of a person who is exploited. Those last two elements would then be presumed absent evidence to the contrary. In other words, this presumption would mean that all the Crown would have to prove in order to make out this extremely serious offence is that the accused lived with or was habitually in the company of a person who was exploited regardless of whether the accused exploited that person or even knew that they had been exploited.

We believe this presumption will very likely be found to violate section 11(d) of the Charter, which is the constitutional right of all Canadians to be presumed innocent until proven guilty. This same language of this presumption has already been found to violate section 11(d) in a related context.

The presumption of innocence is a fundamental cornerstone of our criminal justice system. It is a time-honoured principle that is enshrined in the constitution. Allow me to quote a well-known legal maxim originating from the 6th century:

The proof lies upon him who affirms, not upon him who denies; since, by the nature of things, he who denies a fact cannot produce any proof.

For well over 1,500 years, we've understood that proving a negative is an elusive concept that should not normally form part of defending a criminal charge, particularly one as serious as this. Yet, in our submission, Bill C-452 proposes to do just that — force an accused to muster evidence of a negative, even though the Crown may not have proven the central features of the human trafficking offence.

The CBA section believes that this aspect of the bill should be removed, as it is unlikely to survive a section 1 analysis. We make three points for the basis of that submission about section 1.

First, proponents of the bill suggest that because the language used in this bill was upheld in a decision called Downey from about 20 years ago, that it will again survive constitutional scrutiny. Downey was a case with a similarly worded presumption which formed part of the former living off the avails offence. As you all know, of course, that offence was struck down recently in the Bedford decision.

In Downey, the Supreme Court split four to three, ultimately upholding this similarly worded presumption. The current Chief Justice, who was of course the driving force behind the Bedford decision, dissented in Downey, finding that the presumption was unconstitutional. Chief Justice McLachlin's reasons were prophetic. They referred to themes which were later repeated in the Bedford decision, including the fact that an offence will become unconstitutional when it has the potential to capture innocent bystanders who associate with victims of crime.

The second point we will make is that the Chief Justice explained in her dissent in Downey that the presumption as worded suffers from a lack of internal rational connection. While it's true that some people habitually in the company of victims of exploitation will be responsible for that condition, it does not always work out that way. There can be many individuals who are habitually in the company of an exploited person who either have no knowledge of the exploitation or have no control over it. We provide a very practical example of that problem at pages 2 to 3 of our written submission.

The third point we make is that this presumption does not minimally impair the right to be presumed innocent, which is another aspect or feature of a section 1 analysis. The presumption will invariably capture people who are not the focus of the objective of the human trafficking offence. Innocent bystanders, including co-workers or co-tenants with no knowledge of the victim's exploitation, would be captured by this legislation. This means the legislation suffers from what we call over-breadth and would therefore not be saved under section 1. As the Chief Justice explained, legislation that is over-broad is, by definition, irrational.

For these various reasons, the CBA section says the presumption contained in Bill C-452 should be removed. Thank you.

The Chair: Thank you. We will begin questions with the committee's deputy chair, Senator Baker.

Senator Baker: Thank you, Mr. Paisana, for your presentation. I suppose your main point here is that the presumption violates the presumption of innocence. As I recall, I think you've litigated this section of the Charter before the British Columbia court on occasion.

My major concern with it is this, and perhaps you can solve my problem. When you look at 286.2 of the Criminal Code, there is a definition. The presumption involving providing living off of sexual services is there. There is a presumption there. Recently, the Criminal Code was changed. We had the person who sponsored the bill sitting opposite to me. Following Bedford, sections were rewritten. There is a presumption there involving living off sexual services. We now have another presumption in this bill covering approximately the same area, but with different wording. I'm wondering whether or not you can have, in this case, two presumptions addressing materially the same issue worded differently, one extraordinary, the one in this particular bill. Do you have any comment on that?

Mr. Paisana: Yes. I'll make two points in response to that question. First, for the reasons I've explained in my opening remarks, it is my respectful view that the new prostitution bill and that particular aspect that you're referring to in terms of the presumption will likely also be subject to constitutional scrutiny.

The Chief Justice was prepared to strike down that aspect of the current wording in 1992, and there's no reason to believe that the court, in light of what was said in Bedford, would not be prepared to do the same. The whole reasoning behind the trouble that the Chief Justice had with it was that it could capture innocent people by virtue of its broad language.

The second and perhaps more direct response to your question is that the only arguable basis for defending that similar presumption in the material benefit offence is that it no longer captures some innocent people because of the exceptions that were built into that offence about bodyguards and such. No such exceptions exist vis-à-vis this bill and the human trafficking offence.

Senator Baker: This is a private member's bill. It wasn't vetted by the Department of Justice. Surely the Justice Department would have pointed out to the private member that there's another presumption worded differently involving the same matter.

I'd like to go back to your statement at the beginning in which you claim that this is a very serious offence we're talking about today, human trafficking. Puzzling to me, you said that normally it's a five- to six-year term. I suppose you could say if you looked at the judgments on sentencing, but this is a provision that carries life imprisonment. Wouldn't you agree that if it involves any kind of kidnapping or violence, that it does carry life imprisonment? It's more serious than I think you put it a few moments ago. If not life imprisonment, then the maximum would be, for any offence that didn't involve violence or kidnapping, 14 years in jail. It could go up to life imprisonment, not just the five- to six-year range that you mentioned; is that correct?

Mr. Paisana: I wish to clarify. You may have misheard what I said. I said the mandatory minimum penalty in some circumstances can be as high as five and six years — the mandatory minimum. That explains how serious, in fact, this offence is. I haven't confirmed it, but I believe a six-year mandatory minimum is the highest mandatory minimum outside of the homicide offences.

Senator Baker: It is. One final question: There is another section to the bill, and we had testimony before this committee on the other section of the bill, and we dealt with it extensively. The section involves the fact that, upon sentencing, the sentences shall be served consecutively. Do you have any comment on that? We did have testimony that this would surely be struck down.

I might point out that the House of Commons, when they dealt with this bill, had no witness with any legal background appearing before it, no witness at all. It falls upon the Senate to call upon people like you, an experienced litigator representing the Canadian Bar Association, to tell us that a portion of this bill is likely unconstitutional. We heard from other lawyers saying this second portion is likely unconstitutional.

Do you have any comment on the consecutive serving of sentences?

Mr. Paisana: Thank you for that question. The CBA section hasn't addressed that particular aspect in our written submission. However, we generally oppose measures that remove discretion from trial judges at the sentencing phase. I echo some of the comments from Mr. Russomanno, I believe it was, in the earlier session that you had about the problem with totality.

It also impacts the presumption aspect of this bill, and I'll try to explain that. When you have consecutive sentences coupled with mandatory minimum penalties, it makes it even more unlikely that the rebuttable presumption will survive constitutional scrutiny. That is because, as the court has held, when you take away the flexibility in sentencing, it makes the manner in which you can prove the mens rea a much more narrow proposition.

That proposition comes from a decision called Creighton from the Supreme Court of Canada, which holds that the flexibility, or lack thereof in this case, in sentencing can have a direct impact on the constitutionality of the offence itself.

I also note that the mandatory minimum penalties appear to have been introduced after the sponsor of this bill testified at the house committee. In response to Mr. Cotler's concerns about the totality of sentence, which I believe the senator's question is directed at, she said this:

He was concerned that there may be a danger of limiting judicial discretion. As far as I am concerned, that is not the case because this is not a mandatory minimum sentence.

We see that is no longer the case, and therefore the sponsor's rationalization for this aspect of the bill perhaps will not survive greater scrutiny in light of that change.

[Translation]

Senator Dagenais: My question is quite simple. In its 2014 report on human trafficking — I am talking about the report drafted by the U.S. State Department — there was a chapter on Canada that stated that some judges and prosecutors had a limited understanding of human trafficking, which led them to launch civil suits rather than criminal ones. In addition, some news articles suggested that the police officers were hesitant to investigate sexual trafficking of children without testimony from victims, even though other proof existed.

I would like to know whether you agree with those observations. Have you read this report?

[English]

Mr. Paisana: Are you asking me to comment on the laying of charges without proof? I didn't quite understand what you were asking.

[Translation]

Senator Dagenais: Basically, I would like you to give your opinion on the remarks in the 2014 report.

[English]

Mr. Paisana: I'm not specifically familiar with the section of the report that you're referring to, but if your question is whether or not it's appropriate for Crown authorities to be laying charges without the appropriate level of proof, my answer would always be the same, that it is not.

Human trafficking offences are extremely serious, not only in potential penalty but the stigma associated with such an offence.

I had the privilege of representing someone charged with human trafficking who was later acquitted. The amount of stigma associated with this grave offence is extraordinary, which I say only supports the notion that the level of proof at pre-charge should be significant before such an allegation is levelled against someone in our community.

[Translation]

Senator Dagenais: I explained to you that the judges and prosecutors, given their limited understanding of human trafficking, had a tendency to handle these cases in civil court, rather than criminal court.

Do you agree with that? Do you have any comments to make on that subject?

[English]

Mr. Paisana: I'll provide the contextual example of British Columbia. In British Columbia we have a standard of substantial likelihood of conviction. If it appears to a Crown lawyer that they're not going to be able to prove the case because of the reluctance of a witness, then a charge should not be approved in my respectful view. We appreciate the difficulties with human trafficking offences, and you've heard testimony from certain individuals about having witnesses cooperate with authorities but, in our respectful view, the answer is not to make the offence easier to prove but rather to provide resources that would foster the cooperation of witnesses in these difficult cases.

Senator Jaffer: Thank you for your presentation, Mr. Paisana.

I'm going to start off with one thing that really concerns me. Previous witnesses have assured us that the presumption would not be used to charge people who obviously are not in the business of exploiting others.

You are now more familiar than I am with the criminal justice system. Is that assurance something that anyone can rely on, that some administrator or some Crown prosecutors will say that they will not charge people who are obviously not in the business of exploiting others? I feel that's been left in the hands of people who lay charges. The law should be clearer and we should not be at the peril of some prosecutor who will lay charges or not. I would like your comment on that.

Mr. Paisana: I whole-heartedly agree with the concern you're expressing. Of course we must remember that in some jurisdictions it's even up to the police whether an individual is charged. There are different standards of charge approval across the country, with a different one in B.C. than, for example, in Ontario.

Leaving it to trust the police or trust the Crown to do the right thing, in my respectful view, is a slippery slope that we should avoid. I've acted as Crown counsel. I inherently trust the actors in the system, but that is of little solace to an individual who may be wrongly charged.

Human trafficking is a very hot topic. They're usually high-pressure cases involved in these types of examples, and therefore there will be a tremendous amount of pressure to approve charges, particularly where it is so easy to prove the offence in light of this presumption and that may result in the many prosecutions going ahead that should never have been approved.

Senator Jaffer: I'd like to go back to the presumption. The accused can still be convicted if there is a reasonable doubt as to their intent, the way this bill is. The only way that the accused would not be convicted or be found not guilty is if he could give evidence that the accused was not habitually in the presence of the exploited person; isn't that correct?

The onus would be on the accused to show that he was not habitually in the company of the person who was trafficking or exploiting people. That's the problem with the presumption, isn't it?

Mr. Paisana: The central problem with the presumption is that it allows for the possibility of innocent people being charged and even convicted without actually proving the central features of the offence, because those become presumed.

The way I read and how it works is if, by cross-examining Crown witnesses, you're not able to raise a reasonable doubt about any of the elements of the offence, the accused would then be put in the position of having to speak, having to provide evidence to the court about their guilt or innocence even though the Crown may not have proven all of the elements of the offence.

Senator Jaffer: Normally you have to have mens rea. In this case it's presumed that he is guilty. He has to show he's innocent, right? That's what you were saying, that the Charter absolutely says there is a presumption of innocence and that can never be taken away; isn't that correct?

Mr. Paisana: That's correct. There are some minor instances where the presumption is reversed. However, in those cases, those have all been found to be constitutional because of the very close rational connection between what is being proven and what is being presumed.

For example, there's case law about people being in the driver's seat of a car and then you presume from that fact that they intend to drive. That's a much closer connection than what we're talking about here, and that's why that presumption has survived constitutional scrutiny.

Senator Jaffer: Can you explain how a reverse-onus clause is different from a mandatory-presumption clause like this one?

Mr. Paisana: A mandatory-presumption clause allows the accused to be found not guilty by raising a reasonable doubt about one of the elements of the offence, including whatever has been presumed. A reverse onus is different in that it requires the accused to prove on a balance of probabilities that it is more likely than not, whatever has now been presumed. That is the fundamental difference.

In that sense this is not a full reverse onus, and we support it at least insofar as it does not do that, but it still provides a persuasive or evidentiary burden on the accused if the Crown case does not raise a reasonable doubt.

Senator McInnis: Thank you, sir, for coming today by video conference. My question is very brief.

This reverse onus pretty much came about because these cases are difficult to prosecute, and getting the victim there and what they have to go through.

Can you elaborate alternative means of testifying, in your practical experience? Things, for example, like closed- circuit TV, matters such as that. Are there other ways? There obviously are.

Mr. Paisana: Yes. The Government of Canada has seen fit to introduce measures into the Criminal Code to provide those sorts of protections and avenues of testimony, which include closed-circuit television, the provision that you could possibly have a support worker beside you while you testify and testifying behind a screen. There are various different measures that can be taken in order to foster a victim's testimony in court.

Senator McInnis: In the matter of consecutive sentences being made mandatory, what is that saying to our judiciary and our judges in terms of fashioning appropriate sentences? I don't want to be too crass here, but is this saying that we're losing some trust that judges will do the right thing?

Mr. Paisana: From our perspective, Canadian judges are in the best position to articulate what is an appropriate sentence. They have the individual in front of them; they have all the information in front of them. Taking away their judicial discretion in order to come to a lesser sentence when it is appropriate is not what our Canadian justice system has been built on for these many years.

Judicial discretion in the sentencing phase is a vital aspect of the system. It makes sure that people who are at a lesser moral culpability than others with a similar offence are not punished to the same degree as someone who has a higher moral culpability. We generally oppose such measures in this bill and others that have come previously.

Senator McIntyre: Mr. Paisana, sorry I'm late. I had to attend another committee.

The bill contains five clauses, and I can understand some of the concerns you have regarding some of the clauses, namely as it relates to presumption and consecutive sentences.

However, bearing that in mind, I think it's important to note that consecutive sentencing provisions already exist in the Criminal Code. Some of them relate, for example, to the possession of explosive substances in connection with a criminal organization, section 82.1; using firearms or imitation firearms in the commission of an offence, section 85.4; some terrorism offences in sections 83.02 to 83.23; and finally, participation in criminal activities involving a criminal organization, section 467.4.

What's good for the goose is good for the gander. If we're going to have consecutive sentences for those types of offences, why not have it for human trafficking?

Mr. Paisana: With great respect, that same logic would apply to everything, then. Why don't we have mandatory minimums and consecutive sentences for every offence? The simple matter is because consecutive sentences and mandatory minimum penalties have the adverse effect of limiting judicial discretion to account for scenarios where an individual's moral culpability is much different than what has been anticipated by the offence.

We provide an example of that in our submission. Someone who happens to be in the company of someone, because of this presumption, for example, could be found guilty of an offence that carries a mandatory minimum of five years in prison simply by being in their presence.

In my respectful view, that is not what our system has been built on, nor do I think it can be defended on a section 12 analysis about cruel and unusual punishment. There has to be proportionality between moral blameworthiness and punishment.

Senator McIntyre: I understand the totality of sentencing, but the fact of the matter remains that if we don't apply consecutive sentences to human trafficking, we might as well amend the Criminal Code and remove consecutive sentences with respect to the sections that I just mentioned.

Mr. Paisana: I'm not here to address the consecutive sentences with respect to those other offences. What I can tell you, though, is the absence of a provision mandating the consecutive sentences does not prevent a judge from imposing a lengthy sentence where it's appropriate. There's nothing stopping a judge where a case carries a maximum penalty of life in imposing life if it's that type of offence and that type of offender.

I'm suggesting that we shouldn't remove the bottom floor as well where that could be appropriate.

Senator Batters: Thank you very much for being with us today and for the important testimony that you gave us a little bit earlier when you were answering questions, where you told us that you confirmed that the particular reverse onus we're looking at in this private member's bill requires proof on the balance of probabilities. I think that's an important thing to keep in mind here.

Also, I wanted to point out that the Bedford case dealt with the charge of living off the avails of prostitution. In a large part of the Bedford case, the court talked about the objectives of the legislation and the need to revise it in that respect because we were dealing with charges that had largely been dealt with as nuisances and that sort of thing. Then with the new legislation that our government brought in, that was an important paradigm shift in how we dealt with those charges that were being dealt with as an exploitation matter and not simply as nuisance and less serious types of charges.

Under this particular case that we have this private member's bill on, it deals with the very serious charge — I would say considerably more serious charge — of human trafficking. I'm asking you, sir, if you would agree that the objectives of the legislation, when courts are determining their constitutional analysis, I'm just asking you to consider whether the courts will take into consideration the seriousness of the particular offence they're dealing with when they're doing their constitutional analysis and looking at the objectives of the legislation.

Mr. Paisana: I'll make two points in response. Of course they will consider the objective. Why that will be very important if this presumption were ever to be challenged is for two reasons. First, I reiterate the point I made about Creighton, and that is that the punishment meted out by an offence has to be proportional and flexible in light of how you go about proving the mens rea. What I mean by that is the more strong the penalty, the less flexible the way you can prove mens rea can be. You can't simply prove mens rea by habitually being in the company of someone where the penalty can be as high as six years of a mandatory minimum penalty.

The second point I'll make is that the objective will inform the analysis with respect to the constitutionality of the presumption, because if the presumption results in people being captured who are beyond the objective, it will necessarily mean that the offence is unconstitutional, and we provide an example of that. So if by virtue of the presumption, much the way the Chief Justice explained in Downey, you capture people like co-workers, co-tenants, people not involved in any way with their exploitation, then the offence is more likely to be found unconstitutional.

Senator Batters: Particularly, then, the information that you gave us earlier about the balance of probabilities rather than beyond a reasonable doubt is important to note in that. Thank you.

Senator White: Thanks for appearing here today. My question will surround the presumption discussion, I guess.

You rightly identified that British Columbia and New Brunswick actually have charge approval by the Crown, so I take it that you would not be as concerned in British Columbia or in New Brunswick that charges would be laid by the police without the appropriate level of evidence, and you understand the two requirements there; is that correct? B.C. and New Brunswick would be less of a concern?

Mr. Paisana: Theoretically, because they're operating on what appears to be a much more stringent standard, which is the substantial likelihood of conviction standard, by definition, that would mean that in B.C. and New Brunswick, it would be less likely that charges that shouldn't be approved would in fact be approved, as opposed to other jurisdictions where it's simply a reasonable prospect of conviction.

Senator White: If I may, in reality in every other province, the Crown would still have to approve going to court with a charge because the likelihood of conviction and public interest test still must be passed, even though charges are laid by the police. So the only difference is when a charge is laid, not whether or not it goes to court.

Mr. Paisana: That's true, but the fact that a charge is laid has a significant impact on a citizen. I can do no better than the Chief Justice when she said this in the Downey decision:

At a minimum, the effect of this presumption on the innocent people it catches may be that they have to bear the expense, indignity and stigma of undergoing a criminal prosecution for living on the avails. In the course of an eventual trial, if the evidence adduced in the Crown's case does not raise a reasonable doubt as to whether the innocent person was parasitically living on the avails of prostitution, the innocent person will have herself to adduce evidence which raises such a doubt . . . .

In circumstances where you're talking not just of living off the avails but human trafficking, that stigma would be multifold in comparison and, therefore, we should be diligent about introducing measures that would make a charge even easier to lay.

Senator White: Our diligence is really being tested already by the police to make a decision in the first place, by the Crown to then support or not support the decision to go to court, and then by the judge to decide whether or not the charge should continue. I guess — I'll use your words — the fact that being trafficked certainly has a tremendous impact on individuals as well, then I think this is one of our more serious offences. If it's not appropriate here, it's not appropriate for any charge.

In fact, if I may, I don't think the Canadian Bar Association has ever appeared before us and agreed with anything when it comes to consecutive sentencing or mandatory minimums. I have to say that as much as I appreciate you being here, I'm not sure you're very helpful.

The Chair: Do you wish to respond to that?

Mr. Paisana: Yes, I do, actually.

Simply because the government insists on producing mandatory minimum penalties and consecutive sentence doesn't make it more right every time they do it, with respect. The Canadian Bar Association is in favour of judicial discretion because it's a tried and true principle that has served the Canadian people well for over a century.

Senator Baker: Could you also verify, witness, that the Canadian Bar Association is made up of not just defence counsel but also Crown counsel, our legal profession in this country of Canada, and that when you take a position as the Canadian Bar Association you do consult with those persons in the field right across Canada when you seek their opinion; isn't that correct?

Mr. Paisana: That's correct. This particular submission was the CBA national criminal justice position. Many previous submissions go through three levels of approval across the board of the Canadian Bar Association's membership. Our section in particular is made up of a balance of Crown and defence and, as I indicated earlier, I myself predominantly practice in criminal defence but also act as Crown counsel and have done so in the last three months.

Senator Baker: You certainly have and I can say that I've argued with the Canadian Bar Association when they've done just the opposite to what Senator White had just said you were guilty of. In now representing the legal community of Canada, given that the House of Commons had no representation and no legal opinion given before the committee, what would you suggest this committee do with clause 1 of this bill? What is the recommendation of the Canadian Bar Association?

Mr. Paisana: The Canadian Bar Association quite simply recommends the deletion of the presumption in its entirety.

Senator Baker: Thank you.

Senator Fraser: I have some years of experience on this committee and I would simply like to observe that I have always found the submissions by the Canadian Bar Association to be helpful, whether or not I ended up agreeing with them. I am grateful for the work that goes into the preparation of these submissions. If there is a consistency in the views expressed by the bar, I don't find that to be a flaw. They are operating on a set of principles in which they believe and they are the Canadian Bar Association. I do find it helpful, to coin a phrase, to hear their views on matters affecting the law of the land.

Mr. Paisana: Thank you.

[Translation]

Senator Dagenais: In listening to your testimony, Mr. Paisana, my understanding is that you had doubts about the work done by the police in certain investigations. I would like you to expand on that and explain your doubts. The police are professionals, are they not?

[English]

Mr. Paisana: The police are professionals and by and large we trust the police to do the right thing. The doubts I was expressing was with the notion that by and large we should just trust the police to do the right thing when it comes to charge approval. By no way is that comment meant to disparage the police. They do a tough job and they're here to protect Canadians. However, when you're dealing with charge approval with serious offences like human trafficking we suggest a much more cautious approach, which would remove the presumption from this bill and also take into consideration the seriousness of this offence and the stigma that may associate with it even in the laying of a charge.

Senator McIntyre: Mr. Paisana, I want to follow up from my last question which had to do with consecutive sentences. It has to do with clause 4, which deals with the forfeiture of proceeds of crime. I draw your attention to section 462.37 of the code, which basically outlines how proceeds of crime are forfeited after an accused has been accused of certain offences.

Now, this bill, namely clause 4, adds offences involving procuring or trafficking in persons to the offences to which this expanded jurisdiction could apply. Could I have your thoughts on that, please?

Mr. Paisana: Much like consecutive sentences, we haven't addressed this aspect of the bill in our written submission. On the face of the provision we don't see an issue with including it amongst the offences for which civil forfeiture can apply. Human trafficking can be a highly lucrative offence for which proceeds would be naturally flowing and in that sense from a very general perspective, and I speak only for myself, this not having gone through the vetting process, I don't see an issue with that.

The Chair: Thank you Mr. Paisana. I appreciate your appearance and your testimony.

Our second item of business today is to begin our clause-by-clause consideration of Bill C-279, an Act to amend the Canadian Human Rights Act and the Criminal Code (gender identity).

This bill would amend the Canadian Human Rights Act to include gender identity as a prohibited ground of discrimination. It would also add references of gender identity to two sections of the Criminal Code. I want to remind members that the committee held two meetings on Bill C-279, heard from 11 witnesses and we've also received a number of written submissions.

Before we begin, I want to advise members that we do have an official from Justice Canada, who can be called to the table to answer any technical questions: Mr. Eric Nielsen, Counsel, Human Rights Law Section, Justice Canada.

I want to spend two minutes going over a couple of things with the senators. I want to remind you, in terms of the mechanics of the process, when more than one amendment is proposed to be moved in a clause, amendments should be proposed, in the order of the lines of a clause.

Some amendments that are moved may have consequential effect on other parts of the bill and we're going to do our best to keep track of these places where subsequent amendments need to be moved. We'll draw your attention to them if necessary.

There is no notice required to move amendments. There has been, as a result, no preliminary analysis of the amendments. So if any member wishes to propose an amendment, please allow your colleagues and our staff some time to review them before we open the floor for debate.

Finally, I want to remind senators that if there is ever any uncertainty as to the results of a voice vote or a show of hands, the most effective route is to request a roll-call vote. Senators are aware that any tie vote negates the motion in question.

Do we have any questions or clarifications that are required at this stage? Okay. We shall proceed.

Is it agreed that the committee proceed to clause-by-clause consideration of Bill C-279, An Act to amend the Canadian Human Rights Act and the Criminal Code (gender identity)?

Hon. Senators: Agreed.

The Chair: Agreed. Shall the title stand postponed?

Hon. Senators: Agreed.

The Chair: Agreed. Shall clause 1 carry?

Senator Baker, you wanted to intervene?

Senator Baker: I wanted to intervene. Normally when we get to a point where there is discussion, the chair will go to this side me, as the deputy chair. I wanted to point out, Mr. Chair, that I want to relinquish that role to Senator Mitchell because he is the sponsor of the bill, when there is a discussion on anything. I so request that the chair do that because I would certainly, as an individual, follow the position of Senator Mitchell because he has a great knowledge of this legislation. Thank you.

The Chair: Does any member have any objection to that? Seeing none, then we'll proceed.

Senator Plett, you have the floor.

Senator Plett: Thank you. I have a few amendments. I would like to propose one, in clause 1. I have a similar type of amendment, just as a way of introduction, which deals with gender identity: deleting of the definition of "gender identity'', to propose when we get to clause 2, 3, and 4.

I move:

That Bill C-279 be amended in clause 1, on page 1,

(a) by replacing line 6 with the following:

"2. The purpose of this Act is to extend''; and

(b) by deleting lines 23 to 27.

If I could give you my rationale, chair, and this rationale will apply in clause 2, 3 and 4 as well.

As many of you will recall, we had lawyer Michael Crystal in this committee, and he pointed out to us that the definition of gender identity is problematic. The definition, as it currently reads states:

. . . in respect of an individual, the individual's deeply felt internal and individual experience of gender, which may or may not correspond with the sex that the individual was assigned at birth.

It was Mr. Crystal's submission, chair, that this definition is overly broad and subjective. It would not allow the courts and Human Rights Commission to determine reasonable parameters or guidelines as to how the protection would apply. He used the case of Synthia Kavanagh, in 1993, who was born a man and lived much of her life as a woman. When she went to prison she was originally sent to a male incarceration facility. She filed a complaint with the Canadian Human Rights Commission. After this, Correctional Services Canada developed a policy, which requires sex reassignment surgery prior to serving in the prison of the gender that a trans individual identifies with. CSC then paid for Ms. Kavanagh to finish her transition and then moved her into the women's prison.

I asked Mr. Crystal at committee if this law had been in place with this current definition would CSC have been able to come up with a policy like that. His response was that CSC would likely have had to allow Ms. Kavanagh to go to the women's prison immediately before sex reassignment surgery had taken place.

Furthermore, colleagues, no other jurisdictions in Canada have included a definition for gender identity. Removing the definition ensures consistency across the country.

That is my rationale, chair, on this particular amendment.

Senator Mitchell: Without acknowledging or necessarily agreeing with Senator Plett's defence and presentation, I will say that I support this amendment for a specific reason, and that is that no other identifiable group listed in this act is defined, so defining gender identity is inherently discriminatory in a bill that is trying to do away with discrimination. I would recommend the support of this particular amendment.

Senator Baker: In other words, if I understand you correctly, Senator Plett, you are not amending the portion that will include gender identity in the Canadian Human Rights Act.

Senator Plett: That's correct.

Senator Baker: In other words, you're in agreement with including it in 2.1. Section 2 of the Canadian Human Rights Act replaced by the following, and that includes the words "gender identity.'' You are in total agreement with that, and you are voting for it.

Senator Plett: I think to ask me whether I am in agreement with this, Senator Baker, is not fair.

Senator Baker: You're not amending it.

Senator Plett: I'm not amending it.

Senator Baker: You're not amending that at all. You're amending what comes further, and that is a definition, based upon the advice of an expert legal authority who came before the committee.

Senator Plett: That is correct.

The Chair: Is there any further discussion? Do you wish the amendment read into the record again? Is it your pleasure, honourable senators, to adopt the motion in amendment?

Hon. Senators: Agreed.

The Chair: Agreed. Carried.

Shall clause 1, as amended, carry?

Hon. Senators: Agreed.

The Chair: Carried. Shall clause 2 carry?

Senator Plett: Chair, I have an amendment in clause 2. It reads basically the same, but I will read it into record.

I move:

That Bill C-279 be amended in clause 2, on page 2,

(a) by replacing line 1 with the following:

"2. Subsection 3(1) of the Act is re-''; and

(b) by deleting lines 11 to 14.

This again deals with the removal of the definition of gender identity, and the rationale would be the same.

Senator Mitchell: It simply accommodates the earlier motion, and we're fine with it.

The Chair: Senator Baker, did you have a comment?

Senator Baker: No.

The Chair: Is it your pleasure, honourable senators, to adopt the motion in amendment?

Hon. Senators: Agreed.

The Chair: Carried. Shall clause 2, as amended, carry?

Hon. Senators: Agreed.

Senator Plett: Excuse me, chair.

The Chair: Carried.

Senator Plett: No, excuse me, chair. I have a —

The Chair: That comes now.

Senator Plett: Thank you. I appreciate that. It is before clause 3. I apologize to you, chair. I have a new clause, just before clause 3, a new clause 2.1.

I move:

That Bill C-279 be amended, on page 2, by adding after line 14 the following:

"2.1 Subsection 15(1) of the Act is amended by striking out "or'' after paragraph (f) and by adding the following after that paragraph:

(f.1) in the circumstances described in section 5 or 6 in respect of any service, facility, accommodation or premises that is restricted to one sex only — such as a correctional facility, crisis counselling facility, shelter for victims of abuse, washroom facility, shower facility or clothing changing room — the practice is undertaken for the purpose of protecting individuals in a vulnerable situation; or''.

Colleagues, this amendment deals with 15.1(g) of the Canadian Human Rights Act, which is a section dealing with exceptions.

As many of you know, my primary concern, and the issue we continue to hear from concerned citizens, is in respect to sex-specific facilities. We know that gender identity legislation in the jurisdictions that we have implemented it have included terms such as gender fluid, agender, genderqueer and neutros in their interpretation. This amendment will protect those operating sex-specific facilities in federal jurisdiction, for example, bathrooms, military base change rooms and shower rooms, and women's shelters on First Nations reserves if they decide not to allow, for example, a biological male self-identifying as female into a sex-specific facility for the purpose of protecting vulnerable women.

Colleagues, we have a young girl here, and I spoke to her at the break. She had a concern that this bill would impact her in her school. I explained to her it would not because that school is provincial jurisdiction. This bill, of course, deals only with federal jurisdiction, and so I wanted to assure Charlie that this would in no way impact her at school.

We heard, colleagues, from Susan McLeod from the Siksika Health Services, who was supportive of the bill in principle, that women who have suffered physical or sexual abuse often find the experience of being in the presence of a biological male traumatic. This protection will allow health service providers the flexibility to provide separate but equal treatment for trans women when necessary for the protection of vulnerable shelter residents.

If an individual like Christopher Hambrook, the convicted sex offender who falsely claimed to be transgender to gain access to a women's shelter in Toronto, were to attempt to gain access to a women's shelter on a First Nations reserve, this would provide protection for the shelter.

In my opinion, this addition to the exceptions section of the Canadian Human Rights Act will afford those operating sex-specific facilities on federal jurisdiction with a reasonable protection. This will no longer allow biological males to self-identify as female and gain unrestricted access to sex-specific facilities.

This in no way hinders human rights protection for the transgender community. They will still be a recognized group by the Canadian Human Rights Act and will not be able to face discrimination most importantly, and this was raised with me, most importantly, in areas like housing and employment, which I know are two of the greatest concerns for the community.

Colleagues, I hope you will support this amendment.

Senator Mitchell: I will not, and my colleagues will not support this amendment. If I could provide the reasoning for that, I will.

First of all, this act and the human rights legislation and the Criminal Code in this respect are designed specifically to avoid discrimination, and this clause is inherently discriminatory. The very act that is designed to prohibit discrimination is actually being amended in a way that would allow for discrimination. That is the first question.

Second, I'm very pleased that Senator Plett pointed out the distinction between the application of this to the federal jurisdiction and to schools, but it is an interesting distinction that he draws. There is now in I believe five provinces legislation that acknowledges gender identity rights and ergo has jurisdiction over schools. There is no evidence, no case that I am aware of, no case that I expect anyone in this room is aware of, where it has ever been a problem, the question of schools, washrooms, et cetera.

Where this kind of bill, this kind of right, has been applied, i.e., in five provinces, in schools, for example, using the Charlie case, there hasn't been a problem. In fact, a review of North America experience wherever this kind of right has been extended to transgender people, there has not been any clearly or reliably or credibly documented cases where it has been abused by somebody who has gone into a facility and done something inappropriate.

In fact, it's interesting to note that the same Michael Crystal who Senator Plett used to defend his amendment with respect to taking the definition of gender identity out, and who was very compelling and actually convinced me that that was the right step, went on in his testimony in a number of ways to say that this amendment, the one before us at this particular moment now, the one with respect to washroom facilities and showers, was not necessary.

I would quote him, as Senator Plett did earlier:

In terms of when Senator Plett raises the issue, let's say an individual, a brazen trans male, walks into a female washroom, maybe to make a statement, maybe to assert her rights. The question is: Do we turn a blind eye to that act if it is without any disregard to the rights of others?

I say no. I say that is not the way our law works.

The law that exists. That's not the way the law works now.

In fact, if it's done with a view to create hysteria, there may even be a criminal complaint.

That's my point. There is a global approach to these issues, and we should heed that.

He is making the point, and he made it a number of times, the same Michael Crystal who said we need to take the definition of gender identity out, which we have done. He made the point that we do not need to include this washroom/shower facility amendment in this bill. In fact, it complicates matters and will not end up achieving the kind of result that Senator Plett is arguing that it might.

If I can use an analogy, many people who argued against gun control said that lawful, law-abiding gun owners shouldn't be held accountable for the actions of unlawful, non-law-abiding gun owners. In effect, if you put this amendment in, what you're saying is lawful, law-abiding transgendered people will be held accountable for somebody who could do something unlawful, inappropriate in a bathroom or washroom facility, for example, who may not even be transgendered, who might not even be aware of this particular right and who might not ever use it. It doesn't prohibit that.

It holds people who are law abiding, who are fully fledged and should be equal members of our society, accountable for the potential, although it's a very long-shot potential that somebody would misuse this to try to justify a criminal act. That is the same thing that people who are opposed to gun control argued. It's exactly the reverse argument they used there, which is why would we hold somebody who is law abiding responsible and accountable for somebody who is not?

It's for those reasons that I would not support this amendment. I simply believe that it's not necessary and that it weakens the bill in many ways, even in the ways ultimately that Senator Plett is trying to strengthen it.

Senator Plett: Thank you. I won't belabour this. I will intervene one time. Senator Mitchell and I talked about this earlier, and we didn't want to make this a back and forth. I don't plan on doing that, and I appreciate all of his comments.

I want to just read into the record a few of the comments that Ms. McLeod made from the Siksika First Nation when she was here. She was very clear when she said:

We don't want to turn away transgendered persons coming to our shelter and our transition house simply because of their gender at birth. We don't want to do that. But we also recognize the fact that we have to protect women and children.

She went on to say:

The lack of clarity within the legislation makes it difficult for us to establish appropriate services and legal and ethical policies. The clarity would help us to make those definitions and policies at the administrative, front-line level.

We simply want to have the choice on-reserve to have a facility that we can offer to both transgendered individuals and to women and children in separate areas.

The last part of her testimony I'll read is:

We fully believe it is possible to provide separate treatment facilities for men, women and transgendered individuals within the same facility, and the bill should be amended to allow health administrators to provide service in a manner that helps all and harms none.

Gerald Chipeur was here with Ms. McLeod, and was a constitutional lawyer as well. Senator Baker knows him well. He was here and he felt the opposite of Mr. Crystal, that in fact this amendment was very necessary. Some of the wording that he suggested to me was significantly stronger yet than the wording we came up with at the end. He believed it was very necessary.

Those are my only comments, chair.

Senator Jaffer: Senator Plett, this is the first time I'm seeing the amendment, so may I ask for some clarification so I have a better understanding of it?

One thing that concerns me, and you can correct me because I have not studied it as much as you have, is that we are not clarifying other groups that are discriminated against; we're just doing it for it trans people, people with gender identity issues. We don't do it for women and we don't identify or go further to explain. I have a concern that this is more discriminatory. That's a bigger concern.

I would like you to explain why you set out just a few facilities. It's just an example, I get that. Why just a few? "Such as,'' it could be "others.'' Were you advised, or why did you feel it was necessary to put some facilities there?

Senator Plett: Thank you, senator. Initially, as I just finished explaining, when we talked to Gerry Chipeur he suggested a few others, such as sporting facilities. At one point I had it in the amendment.

My personal feeling, Senator Jaffer, was that the facilities that I am using are the ones where it is most likely for people in vulnerable positions to be exposed to people with biological differences.

Also, in crisis shelters, as Ms. McLeod shared, and I'm not going to quote her, I'll just say what she shared here at committee and with me that when people come to her crisis centre, they are mostly women. The crisis centre isn't specific to women, but they're mostly women. They're mostly women who have been abused by men.

Her concern was not that if a transgendered individual went there that they were a threat to anyone, but her concern in that particular case was here is a woman who has come to my facility. She has been maybe raped, maybe beaten up, abused by her husband, father, brother, boyfriend, and she sees a biological male and it is a traumatic experience for her. She doesn't identify that that person is of no danger, that that person is transgendered.

Furthermore, Ms. McLeod said that this transgendered individual could apply to work there. Of course, we are not dealing with the employment issue, but she raised a concern there. She said here is a biological male who will now be helping this woman who is already traumatized, and so she had a concern.

I have raised, as you know, senator, the issue of fully grown men walking into a woman's shower — and I will use men because I believe they are biological men, transgendered, but biologically they are male — walking into a shower room that has either women or girls in it. Of course it could be the opposite. It can be a biological female, but it seems that it's more often the earlier one.

Those are the reasons. So I chose, for the amendment, the facilities where I thought people would be the most vulnerable. So these are the ones I chose.

Senator Jaffer: Senator Plett, I very much appreciate your explanation. I know how much work you've put on it but, with the greatest of respect, I feel that this is discriminatory. We're trying to take away the discrimination, and then you are putting it back. That's my challenge with this.

Senator Plett: I appreciate that. I guess I'm saying that if I feel that my daughter or granddaughter is being discriminated against — if she is not allowed into a facility of her choosing and she's not. I guess we can go back and forth on that, but I respect your opinion.

The Chair: Is there anything further on this?

Senator Mitchell: I want to thank Senator Jaffer and her intervention, and underline that this particular amendment is deeply troubling to transgendered people. I want to acknowledge here, on the record, the deep pain that it causes them. I would like to say that without going back and forth, I could answer some of the points that Senator Plett has made, but this is not the time to do that. We can do that at third reading as well.

There is another complication. What this clause will require is that a trans man — so somebody who was assigned a woman's physique at birth, but transitions to a man and is on drug therapy and hasn't been operated on, and looks as masculine as every man around this table, and, in fact, there are probably trans men in this room who we have no idea, were assigned women's physiology at birth — will be required to use a woman's washroom. Somebody who looks absolutely masculine and looks like a man, and who knows that he is a man would, could, be forced under this amendment, to use a woman's washroom. That would be, it would seem to me, extremely unsettling both to the transgender man and to any women who happened to use that washroom at the time.

So there is this conundrum. I'll leave it at that and say that while we supported the earlier amendment, we simply will vote against this amendment.

Senator Jaffer: I'm really uncomfortable with this amendment. I feel there is a presumption that a transgender person is in an aggressive position and I especially have great difficulty with the protecting individuals in a vulnerable situation. For me, that is assuming that the transgender person is a threat to people. All that we worked for and all this legislation, it's all for naught. We say we keep the gender identity, but yet we say that they cannot use some facilities because we see them as the aggressor because we are saying the other people are in a vulnerable situation. I have great difficulty with this amendment.

The Chair: I think that exhausts the conversation surrounding the new clause that Senator Plett has proposed. Senators, is it your pleasure to adopt the motion in amendment?

Some Hon. Senators: Agreed.

Some Hon. Senators: No.

The Chair: On division. The amendment is carried?

Do you want a roll-call vote? I'll ask the clerk.

Senator Plett: I have been quite under the weather lately and so I apologize.

The Chair: We're about to have a roll-call vote, Senator Plett.

Shaila Anwar, Clerk of the Committee: The Honourable Senator Runciman.

Senator Runciman: Abstain.

Ms. Anwar: The Honourable Senator Baker, P.C.

Senator Baker: I am against the amendment proposed by Senator Plett.

Ms. Anwar: The Honourable Senator Batters?

Senator Batters: For the amendment.

[Translation]

Ms. Anwar: The Honourable Senator Dagenais?

Senator Dagenais: For the amendment.

[English]

Ms. Anwar: The Honourable Senator Fraser.

Senator Fraser: No.

Ms. Anwar: The Honourable Senator Jaffer.

Senator Jaffer: No.

Ms. Anwar: The Honourable Senator Manning.

Senator Manning: Yes.

Ms. Anwar: The Honourable Senator McInnis.

Senator McInnis: For the amendment.

Ms. Anwar: The Honourable Senator McIntyre.

Senator McIntyre: For the amendment.

Ms. Anwar: The Honourable Senator Mitchell.

Senator Mitchell: Opposed.

Ms. Anwar: The Honourable Senator Plett.

Senator Plett: In favour.

Ms. Anwar: Senator White isn't here.

Yeas, six; nays, four; abstentions, one.

The Chair: New clause 2.1 is carried. Shall clause 3 carry?

Senator Plett: Thank you, chair. There is one more amendment here, chair.

I move:

That Bill C-279 be amended in clause 3, on page 2, by replacing lines 17 to 24 with the following:

"(4) In this section, "identifiable group'' means any section of the''.

This amendment deals with the removal of the definition of gender identity and therefore my rationale is the same as it was for clause 1.

The Chair: Okay.

Senator Mitchell: It's more of the same of the first amendment, so yes, I support it.

The Chair: Are senators in agreement with adopting the motion in amendment?

Hon. Senators: Agreed.

The Chair: Carried. Shall clause 3, as amended, carry?

Hon. Senators: Agreed.

The Chair: Carried. Moving on to clause 4, Senator Plett.

Senator Plett: Thank you, chair.

I move:

That Bill C-279 be amended in clause 4,

(a) on page 2,

(i) by replacing line 28 with the following:

"4. Subparagraph 718.2(a)(i) of the Act'', and

(ii) by deleting lines 36 to 38; and

(b) on page 3, by deleting lines 1 and 2.

Again, it is in keeping with the ones that we've already passed.

Senator Mitchell: We support that.

The Chair: Is it your pleasure, honourable senators, to adopt the motion in amendment?

Hon. Senators: Agreed.

The Chair: Shall clause 4 as amended carry? Carried.

Senator Plett: I'm happy you are keeping me in line here.

I move:

That Bill C-279 be amended, on page 3, by adding after line 2 the following:

"COORDINATING AMENDMENT

4.1 On the first day on which both section 12 of the Protecting Canadians from Online Crime Act, chapter 31 of the Statutes of Canada, 2014, and section 3 of this Act are in force, subsection 318(4) of the Criminal Code is replaced by the following:

(4) In this section, "identifiable group'' means any section of the public distinguished by colour, race, religion, national or ethnic origin, age, sex, gender identity, sexual orientation, or mental or physical disability.''.

Colleagues, because Bill C-13, cyberbullying, passed before Bill C-279, there is now an update that I believe needs to be made to C-279. Bill C-13 adds the terms sex, age and mental or physical disability to the prohibited grounds for the hate propaganda section of the Criminal Code. This draft of the bill does not include the new terms, but rather simply adds gender identity to the prohibited grounds. The coordinating amendment will ensure that all intended prohibited grounds will be included in the Criminal Code.

Adding the word "sex'' into the hate crime section is of particular importance, and our colleague in the Senate, Senator Nancy Ruth, has worked tirelessly to have this word included. If this bill were to pass without the amendment, gender identity would be included but sex would not, which is clearly problematic. Senator Nancy Ruth made an important point when she said that women would not have protection under this law unless they started their life out as a man, so this amendment is necessary to ensure all of the intended groups are protected in the hate crimes section of the Criminal Code.

Senator Mitchell: We agree.

The Chair: Agree? Any further discussion?

Senator Baker: In other words, you're adding what?

Senator Plett: We're adding a few.

Senator Baker: What are you adding? I need to know what you're adding.

Senator Plett: I'll read it to you again, sir.

Senator Mitchell: I've got what has been actually added, if you'd like.

Senator Plett: Go ahead.

Senator Mitchell: National origin, age, sex, and mental or physical disability are being added, plus gender identity, but it's all there already.

The Chair: Is there anything else on this, senators? Is it your pleasure to adopt the motion in amendment?

Hon. Senators: Agreed.

The Chair: Agreed, and new clause 4.1 is carried.

Moving on to clause 5, shall clause 5 carry?

Senator Plett: Chair, I move:

That Bill C-279 be amended in clause 5, on page 3, by replacing line 3 with the following:

"5. This Act, other than section 4.1, comes into force 30 days after''.

The rationale here is simply it's a consequential amendment to deal with the collision of Bill C-13 and Bill C-279 to insure that all intended groups are protected.

Senator Mitchell: 4.1 is new.

Senator Fraser: That's the new one?

Senator Mitchell: Yes.

The Chair: It's clause 5 we're amending. It's moved by the Honourable Senator Plett that we adopt the motion in amendment, honourable senators. Agreed?

Hon. Senators: Agreed.

The Chair: Agreed. Shall clause 5 as amended carry?

Hon. Senators: Agreed.

The Chair: Agreed. Shall the title carry?

Hon. Senators: Agreed.

The Chair: Agreed. Shall the bill as amended carry?

Senator Fraser: I'm sorry to be thick, but the amendment we just adopted said this act other than section 4.1 comes into force 30 days after. When does section 4.1 come into effect? You may have explained that, Senator Plett, but, if so, I missed it.

An Hon. Senator: Thirty days.

The Chair: Other than, you're right.

Senator Fraser: Does it come into effect immediately or at the pleasure of the Governor-in-Council?

Senator Plett: I think it's immediately, but maybe Justice officials could explain it. Senator Fraser, I did this one because the law clerks told me I had to put this in. I apologize. This is not my amendment.

The Chair: The clerk advises me that it is because Bill C-13 has a different coming into force date.

Senator Mitchell: This is an explanation that I received I think probably from Justice, but coordinating amendments traditionally come into force when the bill receives Royal Assent. Bill C-279 comes into force 30 days after assent. The amendment to clause 5 serves to exempt the new clause 4.1 from that 30 day period, with the result that it will come into force on assent, at the same time.

Senator Fraser: I apologize.

Senator Plett: I apologize to you. I couldn't explain it.

Senator Mitchell: All I could do was read.

The Chair: Shall the bill as amended carry?

Hon. Senators: Agreed.

The Chair: Carried. Does the committee wish to consider adding any observations to the report?

Hon. Senators: No.

The Chair: Is it agreed that I report this bill, as amended, to the Senate?

Hon. Senators: Agreed.

The Chair: Agreed.

Thank you all. We'll be back here tomorrow morning.

(The committee adjourned.)