Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 9 - Evidence, February 23, 2000
OTTAWA, Wednesday, February 23, 2000
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-202, to amend the Criminal Code (flight), met this day at 3:38 p.m. to give consideration to the bill.
Senator Lorna Milne (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, this is the first session of the year 2000 of the Standing Senate Committee on Legal and Constitutional Affairs. We have before us Bill C-202, to amend the Criminal Code (flight). The first witness to appear before us is Mr. Dan McTeague, the Member of Parliament for Pickering--Ajax--Uxbridge, who is the sponsor of the bill.
Welcome, and please proceed.
Mr. Dan McTeague, M.P. (Sponsor of the Bill): Honourable senators, it is an honour to be here, not just because this is the first bill that you will address in the new year, but also because Pickering is well-known today for truck protests, truck safety blitzes and, on occasion, the odd bit of controversy about nuclear reactors and dumps and whatnot.
I thank you from the bottom of my heart for having dealt with this bill so quickly up to this point. What has taken the Senate two weeks, took the House of Commons 14 or 15 months. It speaks loudly to the difference in timing between the Senate and the house. I am grateful that we have reached this stage at this point. My appearance here today will give me an opportunity to answer any questions you may have with respect to the bill in its current form as passed by the House of Commons.
[Translation]
This bill was prompted by events in my riding. Approximately two years ago, a man, the head of a family of six, was seriously injured. He subsequently died in February of 1997.
[English]
Tragically, there have been many other examples of individuals who have been maimed, injured, hurt, disfigured and, in some cases, even killed.
The current provisions of the Criminal Code which deal with dangerous driving and criminal negligence, do not address the specific act of fleeing a police officer. It was for this reason that the bill seemed to be a necessity in order to draw attention to the public's general abhorrence of that activity, particularly when one considers the rather unfortunate effect of placing our police officers in a position of inordinate risk while trying to uphold the law. The decision of whether a police officer should or should not engage in a high speed chase is left to the attorneys general of the various provinces, and it is dealt with in various police acts.
This bill addresses the other side of the equation. As the justice minister pointed out, the bill allows some balance in terms of ensuring that some responsibility is placed on the shoulders of those who wilfully engage in high speed pursuit, which often creates dangerous circumstances where someone is hurt or even killed.
As you probably know, the bill was introduced in the House of Commons in October 1998, and recently passed. It will add a specific provision in the Criminal Code which will outlaw, with specific penalties, those who evade a police officer. Currently, motorists who flee can only be charged with a Criminal Code offence if the driving conduct amounts to dangerous driving.
As amended, the Bill C-202 would create an offence of refusing to stop a motor vehicle when asked to do by a peace officer, regardless of whether the driving conduct amounted to dangerous driving. The Crown could elect to proceed by way of a summary conviction offence or by indictment.
If the Crown were to elect to proceed summarily, the maximum period of incarceration would be six months imprisonment. If the Crown were to proceed by indictment, the maximum sentence would be five years imprisonment.
The bill, as passed by the house, would create two more offences. An indictable offence in the case of flight from police causing death through dangerous driving with a maximum penalty of life imprisonment would be added. Bill C-202 would also create an indictable offence for a motorist who, in the process of flight, causes bodily harm through dangerous driving. The maximum penalty would be 14 years imprisonment.
The committee of the house heard from a number of witnesses. One witness tragically lost their daughter on Valentine's Day, 1988. I am referring to Sarah Bowman of Brampton. Madam Chairman, I am sure you know the region, and you probably know the family.
The Chairman: I know the individual.
Mr. McTeague: My wife travels that intersection, so tragedies like this do hit close to home.
Not long after that incident, in fact in March of last year, a religious leader in the Macedonian community was killed. Sergeant Rick McDonald of the Sudbury police was yet another victim. Individuals who try to do their jobs or innocent bystanders, being in the wrong place at the wrong time, end up paying with their lives.
I believe the bill is self-explanatory and that the proposed amendments to the Criminal Code are as clear as they can be.
I hope that this Senate committee will report the bill without amendment, although that decision is completely in your hands.
I believe this is the first time a Criminal Code amendment has been, thus far, successfully sponsored by a private member backbencher
I would thank my colleague, Senator Willy Moore, for ushering this bill through the Senate. That it has reached committee stage so quickly is a rather interesting accomplishment. Perhaps Senator Moore would consider sponsoring another private member's bill, so that it might have such good luck and be dealt with speedily.
I would be pleased to answer any questions you may have.
The Chairman: I would remind you that all private member's bills that come to the Senate from the House of Commons receive just and due hearing in the fullness of time. I hope that some day the House of Commons will return the favour.
Mr. McTeague: Do you need a private member's bill to that effect?
Senator Beaudoin: Prima facie, this appears to be a good bill. I am somewhat surprised, however, that there are no provisions in the Criminal Code that are similar to what is being proposed by this bill.
I am certain my colleague Senator Nolin will have some questions on mens rea, so I will leave that area to him.
My concern relates to the maximum penalty which can be imposed. My reaction is that a five-year maximum penalty for an offence under subclause 1.(2) is probably too severe, although I can certainly understand the penalties to be imposed if there is a finding of guilt under subclause 1.(4) which is as follows:
(a) if bodily harm was caused, is guiltily of an indictable offence and liable to imprisonment for a term not exceeding 14 years; and.
(b) if death was caused, is guilty of an indictable offence and liable to imprisonment for life.
I certainly understand that, but why is the penalty so severe in the first instance?
Mr. McTeague: That is an excellent question, senator. As it relates to the indictable offences in this bill, the penalty is to parallel the current dangerous driving provisions of the Criminal Code. This is not rewriting; rather it is to have consistency with what currently exists in other provisions of the Criminal Code. The difficulty, and we can discuss that later, is whether there will be the same degree of success as there is in obtaining convictions for dangerous driving. As we have seen in certain circumstances, Crown attorneys opt to proceed with lesser charges in order to gain some convictions.
In the case of a police officer in Calgary in 1993, the maximum penalty imposed did not relate to a dangerous driving conviction but, rather, criminal negligence causing death. That sentence resulted in only 6 years in prison.
The penalties specified are maximum penalties. The Crown has discretion as to which charge shall be laid, and the court had discretion in sentencing. We want to ensure that the public's concern, the test of the reasonable person, is included in this, and that there will be, at least, some consistency.We want to ensure that this bill does not in some way detract from, or that the charge be anything less than what it is contained in the current dangerous driving provisions.
Senator Beaudoin: I know that when a bill emanates from the Department of Justice, a certificate is filed to the effect that the bill is compatible with the Charter of Rights and Freedoms. Is such a certificate necessary when it is a private member's bill? It is up to the sponsor of the bill to check the questions which arise in regard to the Charter of Rights and Freedoms.
Mr. McTeague: Senator Beaudoin, it is possible that there could be a Cartesian challenge to this at some point down the road.
I suspect that, given the very productive involvement I have had with the Department of Justice, that issue has already been addressed to the extent that it can. There is nothing to prevent someone from finding words that might effectively do this. However, I would think that in a court challenge, the court would take into account the fact that the public, through its elected bodies and through Parliament, perhaps ultimately, signalled unanimous support for the introduction and passage of this bill. I think that there will be a desire to balance that with any specific question of a challenge. There are great minds out there, who are spending time considering this issue. I am not aware of any particular group that has come forward. The bill has now been before the House of Commons for some time.
When you have a background of working in the house which may have a number of bills before it at any given time, you get an idea of who is in favour and who is against certain bills. I have not heard any criticism from anybody which might trigger a concern.
Senator Beaudoin: Do you mean in committee?
Mr. McTeague: Yes, in committee. For that matter I have not heard concerns expressed by anybody who made representations to myself, the opposition, the government, or the Justice Minister.
Senator Beaudoin: Did you consult the Minister of Justice?
Mr. McTeague: I did.
Senator Beaudoin: What was her reaction?
Mr. McTeague: I did not specifically consult in respect of the question of a Charter challenge as, obviously, we do not want to draft legislation that would be subjected to that. There were no grounds to believe that there would be such a challenge at this point, and I was not concerned about that. However, I believe that the Justice Department's direct involvement, that is, its consideration of this bill and helping to ensure its passage, or at least become something the government would not have to undertake on its own, would, in fact, be able to guarantee itself of no challenge. Again, it is up to jurists down the road to make that decision.
I do not know, even after the bill has passed third reading in the house, if anybody has raised this issue. We have not heard such a concern being raised. As I indicated earlier, this bill has been before the House of Commons since October of 1998. We usually hear if particular concerns have been raised. Those concerns normally surface in the media or they may be expressed to me privately by individuals. , They may also be expressed to members of the opposition or to the government.
Senator Beaudoin: They would proceed by comparison with other sections of the Criminal Code. I am not saying this violates the Charter, I simply ask the question because, after all, in one circumstance there may be a penalty imposed of imprisonment for life. A person who is found guilty of an indictable offence under this proposed section may be liable to life imprisonment in a case where death occurred. It may be that the act was purely accidental and in that instance it would not be murder. Of course, I recognize that a judge will not necessarily impose a jail term of 14 years or imprisonment for life.
Mr. McTeague: Yes. Senator, I am not sure that every bill we pass today will stand the test of time. There may be reasons and extenuating circumstances down the road and the harm test may change. Since there have been no open questions of a Charter challenge, and given the fact that the bill was passed unanimously by the House of Commons, I defer to the collective wisdom of the public and the representatives. I also bear in mind that the Department of Justice was involved. If there is to be a challenge, I have not heard of that. It there is a challenge to this particular bill, should it become law, then the challenge must also apply, perforce, to the dangerous driving provisions because this bill is modelled after those provisions.
Senator Fraser: I am a little puzzled. The first clause, in reference to flight, refers to motor vehicles. Clause 2 refers to motor vehicles, vessels, aircraft, and railway equipment. Clause 3 refers to motor vehicles, vessels and aircraft, but not railway equipment. Why are the clauses different?
Mr. McTeague: Which clause does not include the reference to railway equipment?
Senator Fraser: Clause 3. Why there is a difference? Presumably there is a reason for its exclusion.
[Translation]
Senator Nolin: They reproduced section 662 word for word and added section 249.1(3).
Senator Fraser: Is there in fact any difference?
[English]
Mr. McTeague: This has been drawn almost word for word from the dangerous driving provisions of the Criminal Code. If there is an inconsistency, then that would also trigger a problem as far as the dangerous driving provisions are concerned. I would suspect that what we are trying to say is that flight in a motorised vehicle is different from flight on a bicycle or on foot. I think we wanted to make it very specific that the likelihood of injury is greater with the use of a 2,000 pound motor vehicle. In the case of a railway car or an aircraft it is far greater.
Senator Fraser: Or in a boat.
Mr. McTeague: Yes, a boat might be another means of flight, but you cannot row away, although I suppose you could swim away. It is unlikely that a non-motorized vehicle would bring about the kind of carnage that we have seen in connection with motorized vehicles.
Senator Fraser: The technical reason for the discrepancy is that you were inserting amendments to each of the existing clauses, and that the discrepancy exists now in the law, and you are simply conforming with the law as it is written.
Mr. McTeague: If we were to do something that is inconsistent with the dangerous driving provisions, then it would be possible that this particular clause might be used to challenge an unexplained or untested section in the Criminal Code. We have tried to bring in the dangerous driving provisions so that one is not traded off against the other.
Senator Fraser: Thus, you have done as much as you can.
Mr. McTeague: Yes, I have ventured as far as I have been permitted. I do not think the point would be well served if I had ventured into an area that is totally irrelevant to usage. There are precedents and jurisprudence relevant to the area of dangerous driving. I do not think we would want this bill to fail because an inconsistency exists which could be used to lesson the effectiveness of the bill or to not activate the bill appropriately.
Senator Fraser: Maybe the Minister of Justice could turn her attention to the inconsistencies in the law.
[Translation]
Senator Nolin: That is a very good question. If the Crown is unable to prove fully that two offences have been committed under sections 220 and 221 -- a person charged with criminal negligence causing death or serious injury -- but can prove an offence under sections 249 or 249.1, section 662 stipulates that such evidence would be deemed valid under section 249. This is a procedural provisions. In other words, you have met part of the test and the evidence is sufficient.
Perhaps the Justice Minister should include the operation of railway equipment in section 662. Sometimes, on examining draft legislation, we correct mistakes.
[English]
Senator Poy: Mr. McTeague, I think this bill is very much needed. Clause 1(1) states:
Every one commits an offence who, operating a motor vehicle while being pursued by a peace officer operating a motor vehicle, fails, without reasonable excuse... How do you define "reasonable"?
Senator Nolin: Senator Poy has just hit the nail on the head.
Mr. McTeague: It is a lot easier than you think. The test of reasonability is one of the most interesting tests in law. My definition would be that someone who is in a situation where they have wilfully and deliberately decided to disobey a warning, a very clear warning by a peace officer to pull over, has engaged in a further act of reckless driving. Of course, it would be for a court to determine the definition of "reasonable". I cannot make that determination.
Again, much of this would is a question of balance. Did the person actually see the peace officer try to pull him over? Did he see the lights? This is why, in the case of "reasonable", we have given the Crown the option to proceed either summarily or by indictment. For example, the circumstances may be such that the driver did not break highway traffic laws but, nevertheless, failed to stop and obey the request of an officer of the law. These are low speed chases, not necessarily high speed pursuits.
The question of reasonability is best left to a court. My own definition is, if someone decides to put the pedal to the metal and in the process decides to turn down a street with a lot of people at twelve o'clock on a Sunday during a carnival, and the person knows that to be the case, then clearly that person is endangering other lives. I leave this for a court to determine through the evidence that is presented.
What is important about this bill is that the burden of proof and the onus is on the shoulders of the accused, as opposed to the situation which currently exists in the case of dangerous driving where the mens rea and the actus reus have to be proven. Here is a situation where the reverse onus ensures that it will send not only a proper message but that the person can explain why he or she did it in the first place.
It is entirely probable that someone could say, "I did not see it. I was nervous. Someone I know, who is not a police officer, has cherries on the top of his car, and I was in fear for my life." A reasonable person before a court could expect that a court would determine that to be a reasonable excuse.
I think it is important that it be there. If it were not there, you would be manacling people who would have a valid reason. That is what we are trying to do here. The word "reasonable" gives them the opportunity to validate their conduct.
The Chairman: The term "reasonable excuse" is found in other places in the Criminal Code, for instance, with regard to refusing a breathalyzer test.
Senator Poy: It is used frequently.
The Chairman: It is consistent with the wording of other provisions of the Criminal Code.
[Translation]
Senator Nolin: Based on your experience and the research you conducted leading up to the drafting of this bill, can you explain to us why section 249(1)a) alone is not enough to achieve the stated objective in the first part of section 1? I will come back to section 1(3) and (4), but I would like to focus further on section 249.1(1) and (2). This bill provides the Crown with an additional tool. For example, there is an element of mens rea, or criminal intent, in the case of a person who flees after being ordered to stop by a peace officer. That person is guilty of an offence. The bill creates a new offence, a new actus reus, but section 249.1a) was invoked to achieve that objective. What development prompted you to create this new offence?
[English]
Mr. McTeague: Senator, we have looked at that question from a hybrid point of view. We felt there were certain circumstances where we would want to give some latitude to the courts and to the Crown to ensure that, while we are dealing with someone who has evaded a peace officer, the person does not, literally, have the book thrown at him. The question of why we have not put that in the case of the mere act of fleeing a peace officer is that the burden would be on them to demonstrate what kind of conduct they were actually in when they refused, or when they failed to stop for a peace officer. That is an intricate difference between what we are proposing by the addition of section 249(1) and what has been otherwise the dangerous driving provisions where, of course, the burden of proof rests with the Crown. We have put this in here as a flexible tool. The difficulties of obtaining convictions in the area of dangerous driving have been so demonstrable in terms of the outcome, that we felt it important to get some attention paid to the fact that the person has fled a peace officer, may not get the book thrown at them but may end up with a far less serious penalty at the end of it. Nonetheless, the person would be convicted under that specific charge.
If, however, as a result of that, the person has further endangered the lives of other people by knocking them over, by killing them or by maiming them, then it is clear, once it has been established that the person was acting in a deliberate fashion, that the mere act of evasion in itself brings with it those potential consequences. A reasonable person would have known to put the breaks on and to pull over. That is what we tried to address, but we have also tried to give as much latitude to the person who is actually engaging in the act of fleeing a peace officer...
[Translation]
...before inflicting harm on someone else.
Senator Nolin: I understand that in describing this offence, you are seeking to reverse the burden of proof. The fact remains, however, that the Crown will have to show that the peace officer attempted to make an arrest. The Crown will have to prove the circumstances that led the peace officer to order the driver of the vehicle who subsequently fled to stop. Do you feel that your amendment makes it easier for the Crown to prove its case?
[English]
Mr. McTeague: It is important to understand that it may not make it easier for the Crown, necessarily, to obtain the conviction. The Crown will still have to do its work. Rather than the Crown having to prove to the court that this person was actually engaged in a high speed pursuit which eventually caused injury or, worse, death, the burden has now been put on the shoulders of the accused to demonstrate that he or she was not in the position of trying to flee a police officer. It is conceivable, and it is clear, that some people, in some instances, may have acted out of fear.
All too often, we have seen situations in which someone with a suspended licence has engaged in a high speed pursuit, with deadly results. That means that someone who would not have otherwise faced a very serious consequence has used his vehicle as a 2,000 pound weapon to evade prosecution, for silly reasons. It depends on how flexible or how much effort the Crown will have to put into securing a conviction. It is sending a signal to individuals to think about what they are doing before they do it. The severity is there. It is consistent with dangerous driving. However, in the resolution of many cases where a serious offence has been committed, it has become clear that the death of an individual and the loss to a family have been forgotten or lost in favour of other charges being laid. Part of process is an effort to send a message to the public, as well an effort to deal with whether the Crown will be successful. The Crown will have to weigh the balance of probabilities and determine whether it will be able to secure a conviction. If it is not indictable, the Crown can elect to proceed under summary conviction. At least we are starting to send a message and the person will be convicted a criminal offence, albeit a summary offence, in circumstances where it may be shady.
[Translation]
Senator Nolin: When you describe the circumstances in which an offence of this nature can be committed, I can understand why I have been stressing for so long the need for an amendment like this. Persons are getting behind the wheel without a license and when they see the flashing lights, they take off. Rather than focus on subsections 3 or 4, I will confine myself to section 1. The police order the driver of a motor vehicle to stop, the person flees and in so doing, commits an offence. We have not even broached the subject of bodily harm.
I want to be convinced, and I am pretty much, that this offence does not place an additional burden of proof on the Crown. Sometimes, in our quest to achieve an objective, we add an element. Moreover, Senator Poy put her finger squarely on the problem. It is quite normal to have a reasonable excuse. I do not want any additional burden of proof onus placed on peace officers. The circumstances which you describe happen on a daily basis. I do not want to make their job easier. I want some assurances that we will achieve our objective.
[English]
Mr. McTeague: I agree with you, senator, and I think that is exactly what I have been trying to do, but I have to do it in the confines of what jurisprudence allows me to do. If we lose the ability for someone to be charged under this specific provision because it will create more work, or if in some way we are not able to get the message across that this activity or this behaviour will not be tolerated, then we fail in that regard.
There are circumstances in which an individual cannot be charged with dangerous driving. There was an incident 18 months ago, near my riding, where a motorcycle rider failed to stop. He was doing 100 kilometres per hour on Highway 401; was signalling appropriately; and did not break any other Ontario traffic law. What could you charge him with? He was not driving dangerously. He was simply not stopping when ordered to do so.
In that case, one could perhaps make the argument of severity. Could he have killed someone with his motorcycle? He probably would have done more damage to himself. However, this bill would not have allowed that person to escape the wide net which has been cast in order to deal with a very specific problem, which is becoming an increasing problem, as far as society's understanding, of individuals who are getting away with blue murder because there is no precision within the law.
Perhaps there is an argument for general laws, but I think, in this case, there is definitely a need for a specific law.
[Translation]
Senator Nolin: Do subsections (3) and (4) create an offence that is separate from section 249(1)?
Mr. McTeague: Yes.
Senator Nolin: The explanations that you have just provided have helped me understand better section 3 and how it is drafted. In it, you attempt to reproduce more or less the wording used in section 1. In other words, you are talking about the same offence; section 249.(1) creates the offence of motorist flight, while the other offence pertains to the unsafe operation of a motor vehicle. Is that correct?
Mr. McTeague: Yes.
[English]
Senator Moore: Mr. McTeague, I would like to return to a point which was raised by Senator Ghitter. I will read what he said in the Senate and ask you to comment.
He was referring to proposed section 249.1, and he stated:
The key wording is "to evade".
He continued:
As an old criminal lawyer looking at that clause, I think one could have a lot of fun with it if a charge was ever laid in a case where there was no criminal negligence, careless driving or dangerous driving. The court would have to deal with whether or not someone was evading the police in the similar fashion to that of Mr. Simpson.
He was referring to the O.J. Simpson chase.
I do not think he was endeavouring to evade. He was just not stopping.
Then, in referring to the Standing Senate Committee on Legal and Constitutional affairs, he said:
Therefore, I invite the committee to determine whether or not that proposed section goes far enough and does what it is intended to do.
In referring to the proposed section, he said:
I want it to do what it is intended it do. I do not want some smart backroom lawyer coming in and shooting that provision down in flames. I worry that it may not go far enough.
Do you think the words "to evade" are substantial enough to achieve what the proposed section intends?
Mr. McTeague: I cannot think of a better word to describe what the person is doing. He is fleeing, evading, trying to escape the possibility of apprehension. The word "evasion" is extremely important. If a person is out on a leisurely drive and happens not to have a rear-view mirror, did not bring his hearing aid, has the sun in his eyes at 7:30 in the morning, he may not have seen all of this until, of course, the officer pulls up beside him.
Evasions are simply not characterized by people driving at 30 kilometres per hour in a 30 kilometre per hour zone and not pulling over. They also involve gunning it, going up to 130 kilometres an hour, driving recklessly and, in the process, injuring and sometimes killing people. I think the word "evade" is extremely important to underline what this is about. This perhaps refers to the question by Senator Poy on what is reasonable.
It is important that those words are there. Those words are elsewhere in the Criminal Code, and they are there for consistency. There is a litany of jurisprudence in this area. I think the courts are well-equipped to handle these kinds of important words. They have an understanding of their application in terms of securing a successful outcome without damaging or taking away from the person's fundamental rights or liberties. To use a word that would mean less than that, or to use a word that is far stronger than that, might have the reverse effect of not making the bill applicable in any circumstance.
We took a lot of time to craft this, with the help of many, many groups, from the police associations, to victims groups, to the Justice Department. It is rare that you find unanimity in terms of those many forces coming forward and agreeing with what is written. I respect the question and Senator Ghitter's concerns, but I am willing to say that the word itself is steeped in usage, and it will survive the test of time.
The Chairman: Mr. McTeague, the question of a possible typographical error was raised in the Senate chamber yesterday afternoon. I would refer to the bill, specifically to the bottom of page 2, subclause 3(5) which states:
For greater certainty, where a court charges an offence under section 220...
Perhaps you could lead us through what the problem is here, and if it really is a problem, we have our Senate legal officer here who can perhaps come to the table, if senators agree, and tell us what the legal situation is in the Senate, and whether we would have to amend this to correct the problem.
Mr. McTeague: Madam Chairman, I beg forgiveness for the typographical error. It should read "count" as opposed to "court". The French translation confirms that. It is amazing what happens when a small item escapes our attention. I understand that the legal counsel of both the House of Commons and the Senate have been looking into this and that there is a precedent that exists to change a typo before it is gazetted. I would ask the indulgence of the committee to allow that. I can assure you that this was not deliberate. It was an error. It speaks to the need for better review, and perhaps better eyes, but you can see that the words "count" and "court" are very similar. The proper word was in my first draft but was lost. I apologize for that, and would ask your help in seeking a remedy.
The Chairman: I would point out to the senators that, in the present Criminal Code, the wording is:
For greater certainty, where a count charges an offence under section 220...
The correct wording is used in the Criminal Code.
Perhaps Mr. Audcent can enlighten us as to whether we must amend this, or whether it is just a typographical error that we need not amend.
Mr. Mark Audcent, Law Clerk and Parliamentary Counsel: Honourable senators, this is what is called a "parchment" error. Parchment errors are neither common nor are they rare. They occur from time to time. There are different ways to correct the situation. Now that the question has been raised at your table, you can address your minds to how you would like to go about it. Obviously it is within the power of the committee to amend the bill. An amendment would be prepared, should you wish to go in that direction.
However, there is also a power, with the offices of the house to correct typographical errors. In this case, I would have the power, together with my colleague in the House of Commons, to do that. I would first have to advise you whether I would be prepared to exercise my discretion in that way, and then seek your advice as to whether you would want me to that.
To answer the first question, that is, whether I would be prepared to do that, I can tell you that I have consulted with the House of Commons law clerk, Mr. Rob Walsh. I have not consulted with the Department of Justice because this is not a government bill. Therefore, only the two houses are involved. The law clerk of the House of Commons has initialled a change indicating that he is prepared to do this as a typographical error and make the change.
We must look at the nature of the error. It is an error that was in the first reading version. It is also an error that was in the previous bill, in the previous session. We are looking at it, and seeking to determine what it means.
In the Criminal Code, as you have pointed out, Madam Chairman, the words are -- "...where a count charges..." There is no change in the French version from the existing Criminal Code and the bill which both state: "...lorsque un chef d'accusation vise..."
Therefore, we can determine that there is no intention to change the text, if one judges from the French version. It would make sense to have the same expression in the English version as in the French version, and not the English version as presented, which is in error. The English version does not make too much sense. The French version is consistent.
Given those facts, I am prepared to advise the committee, that I could agree to initial this and say that it is a typographical error, if those were your instructions to me. You would be left with a further choice of leaving it up to me to do it, and I would go ahead, or you might want to include an observation in your report. In the last session of Parliament, this was done twice. I appeared before the committee, and discussed the matter with the committee. In one case, an observation was put into the report, so that the committee was telling the chamber what had happened. The committee reported that it was reporting the bill without amendment, but that the law clerk had been instructed to correct a typographical error. Alternatively, you can just leave your report silent. Those would be the options that I would offer the committee.
The Chairman: My inclination would be to include an observation in our report to the Senate, because this point was raised in the Senate, and it should be clarified in the Senate.
Senator Beaudoin: I would agree with that. This has already been initialled by the officer in the House of Commons. All that remains is for Mr. Audcent to add his initials.
Mr. Audcent: Yes.
Senator Beaudoin: It is already in the directory, Madam Chairman. The easiest way to proceed would be to ask that our law clerk initial this. Obviously, we all agree that this is a purely technical matter. I would not object to an observation being included in our report, but I do not think it is strictly necessary.
Senator Cools: I would like to thank the people who picked up on it. That is good and swift work. I commend them.
The committee should give Mr. Audcent an instruction to initial this, but I am of the opinion that the committee has to formally include it in its report because the subject matter of the issue has been raised on the floor of the chamber. It has been discussed formally, therefore, it must be noted. We should instruct our law clerk to go ahead.
The Chairman: Are we agreed that I so instruct the law clerk?
Hon. Senators: Agreed.
Mr. Audcent: I will give the clerk a copy of the report from the relevant committee of the last session.
Senator Joyal: I am pleased to have Mr. McTeague here today. I am concerned about the maximum penalty as provided under your bill, especially when the offence results in death. My fundamental preoccupation is linked to the proportionality of the punishment in relation to the alleged offence.
In other words, how does the punishment that you have provided in the bill compare with other Criminal Code offences resulting in death? How does it compare to penalties for first degree murder, second-degree murder, manslaughter and criminal negligence causing death? At which level of those four categories do you perceive that the offence that is described in the bill compares to one of those? As you well understand, the treatment of the penalty varies, depending, of course, on the level of gravity of the murder.
Mr. McTeague: Senator, that is a very good question and it is one that I would say, at first glance, is best left to a court to decide. There are obviously varying circumstances on a case-by-case basis.
As I indicated earlier, this is consistent with the dangerous driving provisions, which would trigger the same type of outcome, however, not in the specific case of fleeing a peace officer. Given that one is not using a bicycle but, rather, one is using a motor vehicle to evade lawful apprehension, and in the process kills someone, it requires some degree of responseby society which signals its abhorrence. I cannot think of a better way of making that clear than to suggest that a life sentence may follow the taking of a life.
You asked me where that ranks in terms of first-degree and second-degree murder, manslaughter, and criminal negligence involving death. In the case of the police officer to which I referred earlier, criminal negligence involving death resulted in a sentence of six years for the accused. That case may well compel us to understand whether or not human life taken recklessly, perhaps even deliberately, is worth only six years imprisonment.
The question of proportionality is already at debate in the dangerous driving provisions. We would not be setting a minimum sentence. Rather, we suggest that these are the maximums that would be applied. A life sentence may be harsh, so there is a discretion in the court to consider the circumstances in which the person lost his or her life and to decide what penalty is appropriate.
I could cite an example where an individual spent several hours in a high speed chase, hit a few people, and ultimately killed a person. That is a far more serious offence, than an offence which involved someone side-swiping another car, the occupant of which had a heart attack and died. The circumstances of the offence should be reflected in the jail term which is imposed. Those decisions, on a case-by-case basis, are best left to the courts.
However, I want to ensure that the importance of the act of fleeing a peace officer is lessened to the importance that is already attached to that kind of activity under the dangerous driving provisions.
Senator Joyal: In relation to the person who is convicted, clause 1(4) (b) clearly states that:
if death was caused, is guilty of an indictable offence and liable to imprisonment for life.
There is no provision for a lower degree of punishment than imprisonment for life. That is the punishment we have for first-degree murder. It is the harshest punishment.
A person might cause death by not stopping. However, some objective factors that did not involve mens rea, which is an essential element of first degree murder, may be present. I tried to see if, in fact, the principle of proportionality of punishment, in relation to nefarious circumstances that might occur, would, in fact, argue for a maximum sentence of imprisonment that would be left to the discretion of the court.
Mr. McTeague: Senator, I think the discretion may already exist but, because of the search for consistency, and in order to respond to a genuine concern about these activities often having deadly consequences, I think your concern might be beyond the pitch of this bill and overlap other sections of the Criminal Code. A sentence of imprisonment for life, as we understand it, does not necessarily mean serving a lifetime in prison, but rather a specific set of penalties to respond to a specific set of circumstances. It is up to the courts to make that determination.
I am not in any way, shape or form suggesting that we should have a summary conviction penalty in this instance. I am suggesting that to give someone a fine or to take away their licence as punishment for taking another's life is far too lenient. Given the fact that the message is not really out there, the feedback in the House of Commons would indicate that reasonable people from all philosophical backgrounds have agreed to this.
This is probably the best solution that we could have, short of the very important and relevant issue of life imprisonment which you have raised. I do not want to make it zero sum, or an eye for an eye. That is not what I seek. I seek to ensure that the penalties that are currently unenforceable in many circumstances for a specific act, are realized. That is precisely why we have put the indictable offence at the injury level and at the death level with the imposition of a life-term imprisonment. The sentence is left to the discretion of the court after hearing from the Crown and the defence lawyer.
The Chairman: I understand that the penalty, imprisonment for life, in the Criminal Code is similar to the penalty which may be imposed for death caused by criminal negligence.
Senator Joyal: I understand from Mr. McTeague's answer that it is important to recognize that there are various degrees. The bill should try to correct that situation to include the penalty or punishment that is now applicable in such a circumstance. The bill aims to say something, and the message must be clear. I agree with that. It must be an improvement. The question is to determine the level of improvement that we are seeking to achieve in order to ensure that the bill is efficient and meets its objectives in a way that is proportional to other criminal offences. Thus, the bill would be consistent with the provisions of the Criminal Code.
Mr. McTeague: In this case, we wanted to make sure that we did not neglect the question of double jeopardy. We had to have one or the other. We tried to apply what was already in place and not risk this being thrown out or be seen as too extreme in either direction.
Senator Nolin: In the event that someone dies or is seriously injured as a result of a criminal act, I think the best option is to proceed under section 220.
Mr. McTeague: I cannot express how important it is to have consistency in law.
Senator Nolin: One must always consider the circumstances of each case.
Mr. McTeague: Yes, case by case.
Senator Nolin: The courts will have a lot to say in the decision about whether there was the necessary mens rea.
The Chairman: Thank you, Senator Nolin.
The Chairman: Thank you very much, Mr. McTeague. We will take this under advisement. Everyone has received the information that you sent to the committee.
Mr. McTeague: Thank you for taking the time to talk to us. It is an important issue for all of us. It comes down to the final point. I am impressed that the Senate was able to handle this as quickly as they did. It speaks volumes about the necessity of ensuring the upper chamber and the other house remain in tact.
The Chairman: In the annotated version, the wording of section 662 of the Criminal Code states that conviction for dangerous driving where manslaughter charged is:
(5) For greater certainty, where a count charges an offence under section 220, 221 or 236...
That is the present wording.
Senator Pearson: I understand, but what does it mean.
Senator Moore: It is the charge, the paper on which it is written that is the count.
The Chairman: Thank you. We will meet again tomorrow morning at 10:45.
The committee adjourned.