Proceedings of the Standing Senate Committee on
Legal and
Constitutional Affairs
Issue 9 - Evidence
Ottawa, Thursday, May 2, 1996
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-16, to amend the Contraventions Act and to make consequential amendments to other Acts, met this day, at 10:30 a.m., to give consideration to the bill.
Senator Sharon Carstairs (Chair) in the Chair.
[English]
The Chair: Senators, this morning we will consider Bill C-16, an act to amend the Contraventions Act and to make consequential amendments to other acts. From the Department of Justice we have Richard Clair, Project Manager; and Jean-Pierre Baribeau and Gino Grondin, both counsel, all from the Contravention Team. It sounds like a formidable panel.
Gentlemen, please begin your presentation, after which we will question you intensively, if I know this committee.
Mr. Richard Clair, Project Manager, Contravention Team, Department of Justice: This is our first experience before a parliamentary committee and we hope that at the end of it we will be able to say that it was a pleasant experience.
[Translation]
Mr. Clair: I am pleased to have the opportunity to present to you briefly the highlights of Bill C-16 to amend the Contraventions Act, which was passed by Parliament in 1992.
These amendments are designed to strengthen the administration of the federal legislation in an efficient and economic manner, to reduce justice administration costs and to eliminate the overlap from the creation of a federal infrastructure for the ticketing of federal offences.
[English]
The amendments proposed by Bill C-16 fall into three main categories: First, amendments which provide the framework for applying provincial and territorial offence schemes to federal contraventions; second, amendments that improve the present contraventions scheme to make it compatible with existing provincial and territorial schemes; and third, consequential amendments of a technical or housekeeping nature to certain other acts.
The provisions containing the framework to make each provincial or territorial offence scheme applicable to federal contraventions are found in clauses 65.1 to 65.3 of the bill.
The legislation provides the Governor in Council with the authority to make regulations making the offence scheme of a province or territory applicable to federally designated contraventions committed in that province or territory. It also empowers the Governor in Council to make any necessary adjustment to ensure the compatibility of the federal and provincial systems such as making the respective terminology compatible.
Under Bill C-16, an enforcement authority - a police officer, for example - would issue, for a contravention committed in a province, the provincial ticket in use in that province. Once issued, that ticket would be processed by the province like any other provincial ticket.
The legislation ensures that when a provincial offence legislation is made applicable to contraventions, three basic federal principles found in the current act are respected. These are: First, the federal government will designate those federal offences which may be prosecuted under provincial and territorial offence schemes; second, the federal government will establish the amounts of fines payable or the method of calculating those fines which may be prosecuted under provincial and territorial offence schemes; third, no person prosecuted under a provincial or territorial offence scheme shall be sentenced to a period of imprisonment as punishment for the offence charged.
The legislation provides the Minister of Justice with the authority to enter into agreements with the province, territory or municipality respecting the administration and enforcement of the act, the prosecution of contraventions and the collection of fines, as well as compensation for these services. These services will be paid out of the fines and fees collected.
Prosecutions will be handled by federal Crown attorneys, Crown agents or by provincial Crown attorneys or agents if the province and the federal government reach an agreement on that issue.
[Translation]
The bill we are proposing will be implemented in stages over a three-year period. The first agreements will come into effect in 1996. Certain provinces and territories are not prepared immediately to integrate the federal contraventions system in effect in their jurisdiction or to negotiate consideration for their participation in administering the Act.
Ontario and Quebec are the first provinces where we will be implementing the Act. We should point out here that the federal government still has the option of proclaiming the Contraventions Act in the provinces and territories where, for one reason or another, it is impossible to apply the provincial or territorial offence scheme.
The second type of amendment we are proposing is designed to facilitate application of the offence scheme of each province and to harmonize the Contraventions Act with those various schemes.
For example, the term "Attorney General of Canada" has been replaced by the term "Attorney General" throughout the Act in order to make it possible for federal contraventions to be prosecuted by provincial prosecutors.
Terminological changes such as replacement of the word "filing" by the term "by means of a ticket" harmonize the Act with the various provincial schemes. These changes are necessary because prosecutions are commenced in different ways from province to province. In Ontario, for example, proceedings are commenced by the filing of a ticket. In other provinces, prosecution commences on the date of service of the ticket.
[English]
Similarly, all references to the seizure of goods, their automatic forfeiture in the case of a guilty plea and how a court deals with them have been eliminated from the act.
Forfeiture of any goods seized at the time a ticket is issued under the present Contraventions Act is automatic if the offender pleads guilty. This automatic forfeiture would increase the burden on the courts because offenders would have to apply to the court to have their goods returned. One of the main purposes of the Contraventions Act was to decrease the burdens on the courts.
As more and more provincial offence schemes are dealing with default convictions without requiring further intervention from the enforcement authority which issued the ticket, Bill C-16 makes some changes to the act to allow for that possibility. This type of amendment will harmonize the act with existing provincial schemes.
The bill also contains consequential amendments to the Criminal Code and to the Identification of Criminals Act to ensure some coherence between those acts and the amendments to the Contraventions Act. It also amends two other statutes to replace obsolete fine ceilings with ceilings that in line with fine levels for similar offences.
At this point I should like to address certain issues raised at second reading. The list of contraventions to be included in the first phase of the Contraventions Act are in the process of being reviewed by the Regulations Section of the Department of Justice. The list includes the Boating Restrictions Regulations, the Small Vessels Regulations, the National Parks Regulations and the Government Property Traffic Act. With respect to the latter, the offences included in the list are offences concerning speeding. Departments have the responsibility of identifying which offences they will want to include in the list of contraventions.
Departments will continue to be responsible for the enforcement of their regulations. I know the question of guidelines on whether to use a ticket or a summons has been raised. We will discuss this issue with departments and will offer them our assistance in preparing such guidelines.
I would also like to address the question of why it took so long to be in a position to proclaim the act. The act received Royal Assent in late 1992. In 1993, the Department of Justice developed administrative models for implementing the act. Discussions were held with the provinces and territories. They were concerned about costs and about procedures which were different from those in use in their jurisdictions. They did not want a system which duplicated theirs and introduced different procedures for dealing with federal contraventions. These discussions resulted in the design of the present legislation.
[Translation]
The last question raised was that of amendments to the bill in the House of Commons. There was only one amendment. Its purpose was to make the English version coincide with the French version. In subsection 17(4), the words "by means of a ticket" were replaced by the words "under this Act."
The proposed amendments will enable both levels of government to increase their operational efficiency and to provide the public with a more adequate and faster federal contraventions prosecution scheme.
Applying the offence scheme in effect in a province or territory will help eliminate costly overlap since it will save the cost of a separate federal infrastructure that would be highly costly to introduce and administer.
The federal government will furthermore be a step ahead of the provinces and territories in the effective and economical processing of contraventions.
[English]
Using existing provincial and territorial offence schemes is definitely in keeping with the spirit of cooperation between the federal government and the provinces and territories this government fosters.
We would be happy to answer your questions.
The Chair: Thank you. The next time you make a presentation, please try to slow down a little bit. It is very difficult for the translators when you read so quickly.
Senator Jessiman: How long have you been with the department, Mr. Clair?
Mr. Clair: Since 1990, and in this job for four months.
Senator Jessiman: The department has had this for 10 years on an active basis, and you still cannot tell us what offences will be included. Do you know how many offences will be included?
Mr. Clair: In the first phase there will be approximately 400.
Senator Jessiman: That will be limited to the four acts you have spoken of?
Mr. Clair: We are in negotiations with Ontario and Quebec and that is the first phase that will come into force.
Senator Jessiman: In 1992, they said there were hundreds of thousands of offences and that they would winnow them down to about 4,000. Is it your expectation now that they will eventually get to 4,000?
Mr. Clair: We have about 2,000 now. Some departments which were participating in it previously, such as the Department of Agriculture, have withdrawn.
Senator Jessiman: If you know that there will be 2,000 offences, why are we holding up on the 1,600 with Ontario and Quebec?
Mr. Clair: Partially because we want to give the provinces the chance to adapt. They have to get the offences into their computer systems. Also, we need the permission of the departments to include the offences under the Contraventions Act. We do not yet have the agreement of them all to proceed with that.
Senator Jessiman: In order to select the 2,000 out of the hundreds of thousands, did you follow some guidelines?
Mr. Jean-Pierre Baribeau, Counsel, Contravention Team, Department of Justice: We have tried as much as possible to reduce these infractions to offences that are factual so that there is no expertise required. All that is required is a statement that this is a violation of a certain regulation or statute.
Senator Jessiman: Can you tell us what the 400 offences are?
Mr. Clair: Sure.
Senator Jessiman: I would like to see them.
Mr. Baribeau: They were reviewed by the Regulation Section of the Department of Justice. We have received a draft copy. There is some editing work still to be done to ensure that both versions are exactly the same. That draft is the base for what will be published in the Canada Gazette as the official list of offences.
Senator Jessiman: Are you speaking of the 400 offences?
Mr. Baribeau: Yes.
Senator Jessiman: How long will it be before we get to the 2,000 which you expect will be included?
Mr. Clair: It will probably take two or three years to get all the departments participating. All of these offences must be entered into the provincial computers in order to keep track of them. We did not want to ask them to enter 2,000 immediately. We preferred to go by phases to give them a chance to adapt.
Senator Jessiman: Has anyone talked with the attorneys general of the provinces? Are you talking to your counterparts in each of the provinces?
Mr. Clair: Yes, we are in consultation with our provincial officials. We met with the officials from the provinces of Ontario and Quebec most recently. I met with provincial representatives last year as well. We continuously send them information about the progress of the bill. They are quite encouraged and this is the way in which they want us to move.
Senator Jessiman: Someone in your department must have read the minutes of this committee in 1992. At that time, there was a vote taken which was lost four to three. The senators from the Liberal Party wanted the bureaucrats to talk to the politicians in addition to talking to your counterparts. Are you telling us that we are in the same position as we were in 1992?
Mr. Clair: No.
Senator Jessiman: Tell us what you have done differently.
Mr. Clair: The politicians are aware of what we are doing.
Senator Jessiman: How does this committee know that? I am only giving the arguments that the other side gave four years ago.
Mr. Clair: A coordinating committee of senior officials has met with the provinces with regard to the need to amend this bill to allow the application of provincial schemes. I am not sure whether that recommendation went to the ministers. I will check that. However, I know from conversations that I have had with officials in Ontario that these amendments have been brought to the attention of the minister in Ontario. I am not sure whether other officials have alerted their political masters of these discussions.
Senator Jessiman: As was pointed out four years ago, when a committee such as this meets, Appendix I of the Rules of the Senate of Canada apply, which reads:
...whenever a bill or the subject-matter of a bill is being considered by a committee of the Senate in which, in the opinion of the committee, a province or territory has a special interest -
- and they all have an interest in this -
- alone or with other provinces or territories, then, as a general policy, the government of that province or territory or such other provinces or territories should, where practicable, be invited by the committee to make written or verbal representations to the committee...
I suggest, as was suggested before, that we should do that. We should have something in writing from the actual governments so we know that the politicians are aware of what is going on. We were told that the senior bureaucrats do know what is going on, but they do not run the country; they are not responsible.
Senator Gigantès: They do run the country.
Senator Jessiman: You are right, and that is what we are trying to avoid.
You people have nothing in writing from the governments; you are only dealing with your counterparts?
Mr. Clair: We are doing this at the behest of the provinces, so I take it that they have discussed it with their ministers.
Senator Jessiman: I am not here to chastise you.
Senator Lewis: The provisions of the proposed act will depend on the agreements being made with the provinces, will they not? They could be indifferent to it at this stage.
Senator Jessiman: I am only bringing forward to you what was said before. It made sense to me, but they lost the vote. I believe that we should get something in writing from the provinces. If they want to appear in person and tell us that they are in favour of the bill, that is fine, but they should have that opportunity.
Will the form of ticket be the same in each province?
Mr. Clair: No. Each province will use its own ticket.
Senator Jessiman: The wording used in Ontario might be different than that used in other provinces?
Mr. Clair: That is correct.
Senator Jessiman: Another problem they cited was working out the actual wording of the ticket. I took from what I read that you were trying to develop a ticket which would be applicable to all of Canada. That is not the case?
Mr. Clair: No. The description of the offence itself will be the same across Canada, but the ticket format can be changed from province to province.
Senator Jessiman: Has that been worked out?
Mr. Clair: We are working with Ontario and Quebec on that right now.
Senator Jessiman: You are working with them, but has it been worked out? Have you decided that you will have a form of ticket which you will issue in Ontario or Quebec?
Mr. Clair: We are using the Provincial Offences Act ticket in Ontario, yes.
Senator Jessiman: Will that be the case in each province; you will use whatever they are using?
Mr. Clair: That is correct.
Senator Jessiman: If that is the case, I do not know why it will take so long to do it.
Senator Bryden: As I read the act, the Government of Canada can make a contravention under the act any offence or action that is not solely an indictable offence. Is that correct?
Mr. Baribeau: That is correct.
Senator Bryden: For example, under Bill C-8, which is the drug bill, possession of any of the drugs scheduled in the bill is punishable either on summary conviction or by indictment. I therefore assume that these could be contraventions under this bill.
Mr. Clair: Yes, sir.
Senator Bryden: The trafficking offences under Schedule II and Schedule IV of that act are also hybrid offences and could be contraventions for which you could get a ticket. However, for trafficking of cannabis and Schedule I drugs you only proceed by way of indictment, so those could not come under this.
Mr. Clair: That is correct.
Senator Bryden: The Crown is still in a position to proceed by way of summary conviction.
Mr. Clair: That is correct. The Contraventions Act is a tool for the enforcement authorities. It does not replace summary conviction.
Senator Bryden: It is an additional option?
Mr. Clair: That is right.
Senator Bryden: It is my understanding as well that whether the Crown proceeds under the Contraventions Act or by summary conviction, if a particular action is designated under the Contraventions Act, no matter how it is proceeded with the person does not get a criminal record.
Mr. Clair: That is correct. It is no longer a criminal offence.
Senator Bryden: One of the amendments to this bill removes all reference in the original act to forfeiture.
Mr. Clair: That is correct.
Senator Bryden: Does this restrict the number of acts which could be brought under the Contraventions Act? Using the drug bill as an example, would the inability to require the forfeiture of the drugs that are possessed prevent that bill from coming under the Contraventions Act?
Mr. Clair: No. The Contraventions Act has a specific process for forfeiture. However, if the enabling legislation has forfeiture provisions, those are still applicable.
Senator Jessiman: But the criminal record would not be applicable?
Mr. Clair: There would be no criminal record if it were a contravention; that is correct.
Senator Bryden: Section 8(1.1) authorizes the Governor in Council to provide different fees in respect of each province. Is that acceptable in a federal statute?
Mr. Baribeau: There are always differences between court costs and so on in different jurisdictions, so it will not make a difference for the defendant. That is not different from what already exists throughout Canada.
Senator Bryden: Do fees include fines?
Mr. Clair: No. Fines are set and the fees are per province.
Senator Bryden: "Fees" is defined as "the amounts provided for under paragraph 8(1)(e). Clause 8(1)(e) reads as follows:
providing for the fees, costs, penalties and other amounts that.
(i) shall be imposed in respect of a contravention, or
(ii) may be imposed in respect of a contravention.
in the circumstances prescribed in any stage of the proceedings.
Would the fines and penalties normally be the same?
Mr. Clair: The fines are the same across Canada. The fees are to cover the costs of administration of the system in each province.
Senator Bryden: The definition section says that "fees" means any of the amounts provided for under paragraph 8(1)(e). Section 8(1)(e) authorizes the Governor in Council to make regulations providing for the fees, costs, penalties and other amounts.
As I read that, we are defining "fees" to mean fees. So what are fees?
Mr. Baribeau: There is a distinction. When we are talking about penalties, we are not talking about the fine itself. If a contravention of the boating restriction regulations calls for a fine of $100, that fine is applicable across Canada. Now, in Nova Scotia, for example, they add to any fine a processing fee of $50. That amount is automatically imposed for all their fines. We will not change that. We are trying to follow their system. The fine will be the same throughout Canada, but the processing or administrative fee will vary among the provinces.
The penalty to which we refer is for when someone asks for a trial and does not show up. When there is a default conviction in such a case, the court will impose a penalty which also varies among the provinces. The fine will remain at $100.
Senator Bryden: However, the actual impact on the citizen may well be considerably different for the same offence, depending upon in which province it takes place?
Mr. Baribeau: That is correct.
Senator Jessiman: Not the fine though?
Mr. Baribeau: The fine is not different, but we do have to adjust to the different administrative systems of the provinces.
Senator Bryden: Am I correct in understanding that proceedings under the Criminal Code may be turned into proceedings under the Contraventions Act, but that it does not work the other way around?
Mr. Clair: If you are issued a ticket, you cannot go by summons, but if you could go by a summons you can issue a ticket instead, yes.
Senator Bryden: Finally, cooperation with the provinces is set out in clause 65. Section 65.1(1) reads as follows:
The Governor in Council may, for the purposes of this Act, make regulations making applicable, in respect of any contravention or any contravention of a prescribed class of contraventions, alleged to have been committed in or otherwise within the territorial jurisdiction of the courts of a province, laws of the province, as amended from time to time, relating to proceedings in respect of offences that are created by a law of the province, with such modifications as the circumstances require, and, without limiting the generality of the foregoing, the Governor in Council may make regulations...
That is exactly the sort of section that makes people think the law is an ass. That is very unclear. I read it and reread it. I took all the "whereases" and "as amended from time to times" out in order to see what that is saying, but I still do not know what it is saying. If I have that sort of difficulty, how is the ordinary citizen supposed to understand it? What does it say?
Mr. Baribeau: Under section 65.1, the Governor in Council will make regulations which will have a part for each province which makes provincial acts applicable to the contraventions listed in the federal contraventions regulations, for example.
The regulation making provincial laws applicable essentially gives the provincial provisions relating to the provincial penal scheme applicable to the federal contraventions. It will also contain provisions that will allow for concordance between terminology in provincial and federal laws to avoid discrepancies.
The bill also provides that the regulations will make those provincial laws applicable as they are amended from time to time so that we are not stuck to the specific point in time that we made a regulation.
Senator Bryden: I understand that, but there must be a better way to set that out than that very convoluted sentence.
If someone gets a ticket for improperly parking a boat, for example, and if it is clear that the boat was improperly parked and the ticket was properly given out, the first thing the defence lawyer will do is question whether the regulations were properly made within the regulatory authority set out in the act. I could make a living out of section 65.1(1).
Mr. Baribeau: The list of offences is made under section 8 of the Contraventions Act. Section 65.1(1) essentially provides for adjustment with provincial legislation. Therefore, the authority for the offence of improperly parking your boat is already in section 8. The statutes which are applicable are found in the regulations made under section 65.1(1).
There is no doubt that the text is convoluted, but it will not necessarily concern the person charged. The charge is made under the authority of section 8 of the Contraventions Act. We provide the mechanism. We had to create provisions that would allow enough flexibility to encompass all systems in place. For example, under the Code de procédures civiles du Québec, the process starts at the moment the ticket is served; under the POA it starts at the moment it is filed. There are variations so we had to find something to encompass them. According to our drafters, there were not many ways of doing it. We had two or three drafts before we got to this version.
Senator Bryden: In attempting to capture everything, you may have ended up catching nothing.
[Translation]
Senator Losier-Cool: My question is no doubt the same as that of Senator Bryden and I want to ensure that I have correctly understood. I'm not a lawyer. So I want to ensure that I properly understood the answer because, when I introduced this bill in the Senate, it was a point on costs. So, from what I understood, the applicable costs will be different from province to province, but the fine for the same offence will be identical.
Mr. Baribeau: That is correct.
Senator Beaudoin: A clear thought can be clearly stated. What have you just done? The administration of civil and criminal justice is a provincial jurisdiction. The Criminal Code is a federal jurisdiction. What exactly do you want? Do you want to take advantage of the provinces' systems for administering punitive law. Is that what you want to do? The provinces do not legislate in criminal matters. The provinces legislate in "penal" matters, but not in criminal matters. Do you want to unify the two systems by agreement? I wonder why you would want to do that.
Mr. Baribeau: Instead of creating a federal administration with a complete federal structure, we are trying to use systems that are already in place and that work well.
Senator Beaudoin: Provincial?
Mr. Baribeau: Provincial, that is what we are doing. We are importing, we are using their way of doing things for our federal offences.
Senator Beaudoin: You are applying the provincial administration of justice in penal matters, the Crown attorneys, for federal criminal offences?
Mr. Baribeau: That is correct.
Senator Beaudoin: Why are you doing that? To save money?
Mr. Clair: It's at the provinces' request.
Senator Beaudoin: Did Quebec say yes?
Mr. Clair: It's one of the provinces that pushed hardest in this direction.
Senator Beaudoin: Obviously, that gives them more power?
Mr. Clair: We can use their system.
Senator Beaudoin: Very well, you want to make use of a provincial mechanism that works well?
Mr. Clair: That is correct.
Senator Beaudoin: And you are saying: for federal offences, we're going to use your system.
Mr. Clair: That is correct.
Senator Beaudoin: You are signing a contract with the province?
Mr. Clair: Yes, with the province, we are negotiating an agreement with them for the administrative costs of their system. If they do the prosecution for us, we sign an agreement with the province for them to do this work for us, yes.
Senator Beaudoin: As we do for interprovincial transportation with the provinces?
Mr. Clair: That is correct.
Senator Beaudoin: Does that work well?
Mr. Clair: That is correct.
Senator Beaudoin: The provincial offence scheme works well?
Mr. Clair: Yes.
Senator Beaudoin: So you want to use it for your offences?
Mr. Clair: That is correct.
Senator Beaudoin: And you are doing it by means of agreements?
Mr. Clair: That is correct.
Senator Beaudoin: By statutes as well?
Mr. Baribeau: Well, the Act makes it possible to -
Mr. Clair: - make agreements.
Senator Beaudoin: It's constitutional.
Mr. Clair: That is what we thought.
[English]
Senator Doyle: Is there someone in the Department of Justice whose responsibility it is to list at some point in each year the unproclaimed laws of Canada?
Mr. Clair: I have no idea.
Senator Doyle: Have you any idea how many laws might be in the "unproclaimed laws of Canada"?
Mr. Clair: No.
Senator Doyle: Might there be some even older than this one?
Mr. Baribeau: I know of one to do with fuel consumption which was passed in 1985 or 1987. I am aware of a few such statutes which have not been proclaimed.
Senator Doyle: The Department of Justice is very careful about having us go through, each year, the laws that are in effect to make corrections, changes and subtle variations to suit the nuances of two languages or what Senator Gigantès would call the joys of federation. However, no one looks to see what laws have just been left there.
Mr. Clair: The Legislation Section of the department may be able to answer that question. I will ask the question of them and ask them to respond directly to the committee.
Senator Doyle: It would be helpful for us to know. When we were debating the gun laws, people said, "That is not in force in our part of the country," and everyone nodded and said that they understood that, or they said, "They do not enforce that on the reservations," and everyone nodded and accepted that.
We have a legal system that seems to have geographical variations, apart from the differences between federal and provincial. Now we have the problem of laws simply being unproclaimed.
The Chair: If the committee would like, we can follow that up with a formal letter which requests just that information.
Senator Gigantès: Madam Chair, since you are willing to write letters, could you put my ritual and perpetual complaint in a letter? Both the English language and the French language are noble instruments. Jurists have written sparkling prose, in both those languages, which everyone could understand. Is it possible for legal text to be edited so that the ordinary citizen can understand it?
Senator Doyle and I are professional writers. If I had given him a paragraph like that when he was my editor, he would have fired me. He would have told me to write exactly the same thing in such a way that people could understand it. To start with, break it up.
The Chair: Are you suggesting that you would like me to write a letter about plain language?
Senator Gigantès: Yes; plain, elegant, understandable language.
The Chair: I will write such a letter, senator, in my plainest and most eloquent fashion.
Senator Corbin: I have a few brief questions which touch on parallelism between the French and the English. I am not referring to quality. On page 2, there are paragraphs (i) and (ii) in the English. In the French there is no such thing. Do both clauses say the same thing?
Mr. Baribeau: Yes, they do.
Senator Corbin: On page 3, paragraph 8 -
[Translation]
- the French version states that the subparagraph is repealed. You're taking five or six lines to say the same thing. Do they say the same thing?
Mr. Clair: The indeed say exactly the same thing, but it's because drafting techniques are different in French and English. In French, they simply deleted subparagraph 18(b)(iii), whereas, in English, they had a word left in the version. They had (iii) or (ii). So there were three options. Thus, to repeal subparagraph (iii), they had to remove the "or" at the end of the subparagraph.
[English]
Mr. Baribeau: They had to take it off the end of subparagraph (ii).
[Translation]
Senator Corbin: Am I to conclude that the explanation is the same for clause 32, respecting subsection 53(3), where, in English, we have (3)(a) and (b) and, in French, we have a single line?
Mr. Baribeau: Excuse me, at what line?
Senator Corbin: On page 10, clause 32, which concerns subsection 53(1) of the Act: at 53(3), I'm talking about subsection 3: "Le montant - argent ou valeurs -". In English, you again have (a) and (b). In French, you have a single statement. Are they saying the same thing?
Mr. Baribeau: They are saying exactly the same thing. In French, we can refer to the previous subsection, which establishes the structure. So there is no problem. It was easier in French.
[English]
The Chair: Senator Corbin, you have pointed out something very interesting. It seems that the French language is plainer than the English.
Senator Corbin: Yes, contrary to what has been said over the years; that it takes a page and a half of French to translate a page of English. That is no longer true.
Senator Lewis: We would need to see what was in the original to see how it was dealt with.
Senator Corbin: I appreciate that. It could be amending a flaw in the original English as well, but it says the same thing, so I am satisfied.
My final question is with respect to the destruction of photographs. How, in this age of high technology, with the many ways in which information is disseminated between offices and cities, can legislators be assured that photographs will in fact be destroyed?
[Translation]
Gino Grondin, Counsel, Contravention Team, Minister of Justice: I am currently practising in the field of summary offences which are included in the contravention. No photograph or fingerprints are taken. In practice, they are not taken at the start and, consequently, we do not need to destroy them afterwards.
Senator Corbin: But why include the photographs?
Mr. Grondin: Probably to be sure for more serious offences such as hybrid offences.
Senator Corbin: Pardon me?
Mr. Grondin: Hybrid offences, which could be prosecuted either criminally or by summary proceeding. As we said at the start, hybrid offences may be included in the list of offences in the Contraventions Act. So it's precisely so as not to take any chances.
Senator Corbin: So my question was what guarantee you could give me. I don't want to know whether or not the photograph is taken. What guarantee can you give me, when a picture is taken and has to be destroyed in accordance with the act, that it in fact will be?
Mr. Clair: How can we ensure that the officers in authority comply with the act? I think we can ask the question for everything, but they must comply with the act. It's the text of the act.
Senator Corbin: Who checks? Is there a check to ensure that this is in fact done?
Mr. Clair: I don't believe so.
Senator Corbin: So why include it in the act?
Mr. Clair: Because we are clearly indicating that there are no photographs. So it's an illegal act.
Senator Corbin: So if someone is caught in the act, you have the authority to nail him to the wall. Is that correct?
Mr. Clair: That is correct.
[English]
Senator Lewis: Of course what we are concerned with is the official record, is it not? It is something like disposing of contraband drugs or liquor.
The Chair: Clearly, if an attempt was made to use such a photograph at some time, there would be a very good argument that under the law it should have been destroyed. There is no guarantee that it will be destroyed, because the law is not always complied with, but at least there is a guarantee that it could not be used in a way in which it was not intended because this provision says it must be destroyed.
Senator Bryden: Also, you could make an application to a court for assurance that it has in fact been done. That would ensure that it could not be introduced at any time in the future.
Senator Corbin: The other concern I raised was that today it is very easy to reproduce photographs through all sorts of technology. Where does it all end up?
Senator Doyle: Can you tell us whether there are many or any Canadians who might have been spared a criminal record if there had been action on this bill in 1992?
[Translation]
Mr. Grondin: This comes back somewhat to my answer a moment ago concerning photographs. In practice, when an offence is prosecuted by summary proceeding, no fingerprints or photographs are taken. So there is no criminal record for those offences. So no photographs or fingerprints are currently taken for these offences. So I can't guarantee it. In practice, the Royal Canadian Mounted Police and the officers who enforce the regulations who give the contraventions tell us they aren't doing it. There is no criminal record for these offences.
[English]
Senator Doyle: Yet in describing the act the word "decriminalize" is used quite casually, but you are not talking about any offence that would have given any Canadian a record. Is that what you are telling me?
[Translation]
Mr. Grondin: At present, it is possible to do it. With a contravention, in practice, it is always possible to do it since it would be legal, except that a contravention can completely erase this possibility.
[English]
Senator Doyle: I am talking about the law as it is.
Mr. Clair: The practice is that they do not do it, but they have the authority to do it.
[Translation]
Mr. Grondin: Yes, the police authorities really have explained it to us that way. It is precisely too complex a procedure for violations of a more minor nature.
[English]
The Chair: I think we have confused an apple and an orange here. The fact that you have not been fingerprinted and photographed does not mean that you do not have a criminal record. If you are charged with possession of marijuana, you may not be fingerprinted or photographed, but you have a criminal record.
I understood Senator Doyle's question to be whether it is possible that, had this Contraventions Act been in place for the last four years, some Canadians who now have criminal records would not have such criminal records because the province may have chosen to go via the Contraventions Act as opposed to via the present Criminal Code. You cannot possibly answer that question, I would suggest, because it is a hypothetical question. However, in reality, of course people have criminal records today because they did not have the Contraventions Act to deal with.
Senator Lewis: The fact that they are doing it now shows that it was a necessity.
Senator Doyle: In another area, I have always been astonished at reports of records which have never been destroyed. This business of the disappearing record is something which needs some examination.
Senator Jessiman: There were originally going to be 12 departments or agencies and about 4,000 offences. Is it now down to four or five agencies?
[Translation]
Mr. Grondin: We currently still maintain contact with at least some 10 departments and agencies. Two, three or perhaps four departments officially, such as the Department of Agriculture, have told us they were no longer part of contraventions, except that we still retain most of what existed at the start.
The Department of Agriculture and another were originally part of contraventions. They had a large number of offences and that's what lowered the number of offences because the Department of Agriculture alone had almost 1,000 offences. However, we still have about 10 participating departments and agencies.
[English]
Senator Jessiman: Are the 4,000 spread around all the agencies?
[Translation]
Mr. Grondin: We currently have the Department of Public Works for the settlement of government properties and also the Department of Heritage, which is responsible for regulations on national parks. We are also doing business with the Department of Transport, which is responsible for regulations on small buildings and on the restriction on driving boats. So we mainly have these three departments.
[English]
Senator Jessiman: Am I correct in assuming that Quebec will be first to comply with this bill?
Mr. Clair: No; Ontario will be.
Senator Jessiman: And Quebec will follow, you hope?
Mr. Clair: Yes.
Senator Jessiman: Who will determine whether an offence will be dealt with through a ticket or a summons?
Mr. Clair: There are guidelines provided by the department with responsibility for that regulation.
Senator Jessiman: Are those guidelines available?
Mr. Clair: Since the law is not in place, there are no guidelines for enforcement officials. We will be asking the departments to develop them. There are also provincial authorities who enforce federal regulations, so they would be subject to guidelines from their departments as well. That is happening now.
Senator Jessiman: When do you expect Quebec to come on stream?
Mr. Clair: We expect the actual implementation for Quebec to be January 1 or April 1, 1997.
Senator Jessiman: Do you think that all the jurisdictions will be complying within three years?
Mr. Clair: I think so.
Senator Jessiman: I have read that it is hoped that these fines could be paid at financial institutions. Has that been developed?
Mr. Clair: Different provinces have different systems. Wherever you can currently pay fines in a province, you will be able to pay fines for federal contraventions.
Senator Bryden: If in 1995 I committed an offence and was charged and convicted by summary conviction, and in 1997 that particular offence becomes a contravention for which I would get a ticket, is it contemplated that in 1997 I could apply to have my criminal offence conviction removed because it is no longer a criminal offence?
Mr. Clair: I do not know the answer to that question.
Mr. Baribeau: I have to admit that I do not know. This is something we did not work on.
The Chair: Perhaps our researcher could give us some information on that.
Senator Bryden: I think there are other situations where that has occurred; that is, things have changed and people have made retroactive applications.
Ms Kristen Douglas, Research Officer, Library of Parliament: There is nothing in this bill which would have a bearing on that. However, there is a process by which a person with a criminal record can apply for a pardon. I would think that if the offence is so minor as to have been included in the contraventions process, that would come into play, because there is some discretion involved in the pardon process.
Senator Gigantès: Does a pardon not mean that, although you were a bad boy, you are forgiven?
The Chair: That is right.
Senator Gigantès: Senator Bryden is saying that the law has been changed and under the new law I was not a bad boy - not that bad anyway.
Ms Douglas: As I said, nothing in this bill has retroactive effect in the sense that Senator Bryden has suggested. However, the pardon process is part of the process by which, for example, applications for employment are processed. Under human rights legislation you cannot ask an inappropriate question on a job application form. You cannot ask, "Have you ever been convicted of a criminal offence?", because that would be inappropriate. In fact, only offences for which pardons have not been granted need to be disclosed in that context.
When a pardon is granted, it does not mean that the act never took place, and the same would be true under the Contraventions Act. They are still offences and there will still be penalties, but they will not be criminal ones.
Senator Gigantès: We once had a member of Parliament who had been convicted of bank robbery and pardoned, and he objected to someone bringing up that fact in a newspaper article.
The Chair: I wish to thank the witnesses for their presentation this morning.
Is it the will of the committee to deal with this bill clause by clause at this time?
Senator Lewis: I move that we report the bill without amendment.
The Chair: Is the committee in agreement with that?
Hon. Senators: Agreed.
The Chair: We will do exactly that as soon as possible.
Senator Corbin: A number of concerns were raised. What happens to those concerns? Are they translated to the house? Is there a follow up?
The Chair: I have been asked to write a letter with respect to the need for plain language. I will distribute that letter to all members of the committee after it has been sent and I will also share with the committee any response I get to that letter.
I was also asked by Senator Doyle to write a letter on the committee's behalf asking which legislation has been passed but has not been proclaimed and therefore is not in force and effect. I will circulate that letter and the reply to it to members of the committee.
Senator Jessiman: You should also write to the various legislatures and attorneys general. Although these people have said that they are working with their counterparts, I think we should allow the provinces to confirm in writing or in person that they agree with this.
The Chair: Senator Jessiman, we have passed the bill. One of the provisions of the bill is that there must be negotiations with the provinces. Presumably those negotiations would involve at least the cabinet.
Senator Jessiman: Not according to what these people said today or what was said when this was reviewed in 1992. It was exactly the same situation and it was voted on. It is so easy to write a letter stating what we have heard and asking them to let us know within a week if it is otherwise. If they wish to make representations in connection with the bill, we will hear them. If they do not, and if we receive no correspondence from them, we can assume that they are satisfied and that we have complied with our own rules.
The Chair: I can certainly write to the ministers of justice and attorneys general throughout the country saying that this committee has agreed to report this bill without amendment and that it was our understanding that negotiations have taken place, if that is the will of the committee.
Senator Beaudoin: It is the prerogative of the Crown, exercised by cabinet ministers, to decide when they will proclaim an act. It is a decision of the executive, not the legislative branch. Of course, the executive has the duty to proclaim as soon as possible, unless there are good reasons to do otherwise.
My recollection is that from time to time the Committee on the Scrutiny of Regulations sent letters to ministers asking when a certain act would be proclaimed. It is certainly within the function of the Committee on Legal and Constitutional Affairs to intervene as well.
The Chair: In what way would you like me to address this, Senator Beaudoin?
Senator Beaudoin: Are you suggesting a letter to the Minister of Justice?
The Chair: No. Senator Jessiman was suggesting that I should write to the governments of all the provinces and territories.
Senator Beaudoin: That is not my point. The federal minister is enough for the moment, in my opinion. Of course, if both levels of government are involved, there is no doubt that we may intervene and ask the provincial attorneys general what they are contemplating. We have done that before and I do not see why it cannot be done in the future.
Senator Lewis: With regard to the point about the unproclaimed statutes, I presume you would have to go back to 1867 to get the complete record.
The Chair: Senator Doyle, would you like us to put a limit on how far back we go?
Senator Doyle: Yes, 1867.
The Chair: Then we will go back to 1867.
I must say, honourable senators, that I am still somewhat puzzled as to what I am supposed to do as per Senator Jessiman's request.
Senator Jessiman: My point is that in 1992 it was brought to the attention of the committee by the Liberal senators that our rules provide that when a committee is considering legislation which concerns the provinces, generally speaking we would invite them to contact us either in writing or in person.
The last time we dealt with this matter the bureaucrats were here and senators on the other side said, "Bureaucrats are talking to bureaucrats. We want to hear from the attorneys general." The bureaucrats were not elected by the people. We will pass this legislation without following our own rules.
The Chair: Senator Jessiman there is a fundamental difference, however, between this bill and the bill of 1992. The bill of 1992 did not provide for joint federal-provincial agreements. This act does exactly that. It provides for that joint federal-provincial agreement which, therefore, by law, involves the consent of the provinces and the politicians of that province.
Senator Beaudoin: Do not forget that each time we amend the Criminal Code all provinces are deeply interested because they administer the Criminal Code. We may invite the Attorney General to come before this committee or the Canadian Bar Association or the provincial bar associations, and we do when the matter is very important, but I am not aware of a policy of sending a letter each time the Criminal Code is amended. That was not been my experience or that of prior chairmen. You may start that practice, Madam Chair.
The Chair: Thank you, Senator Beaudoin. I am simply the servant of the committee.
Senator Gigantès: Your point, Madam Chair, is irrefutable. If this legislation demands federal-provincial agreement, it means that the Attorney General of Canada will seek the agreement of the attorney general of each province. If one province does not give its agreement, that means that province is not in agreement. Why do we have to ask them whether they are in agreement when there is a mechanism provided by the legislation; in other words, the demand for consultation, through which they will express their agreement non-agreement?
The Chair: Is there general agreement with that?
Senator Corbin: You have answered my question to my satisfaction. I have no problem.
The Chair: Thank you, Senator Corbin.
Senator Jessiman: No letters.
The committee adjourned.