Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 3 - Evidence for December 6, 2007
OTTAWA, Thursday, December 6, 2007
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill S-207, An Act to repeal legislation that has not come into force within ten years of receiving Royal Assent; and Bill C-13, An Act to amend the Criminal Code (criminal procedure, language of the accused, sentencing and other amendments), met this day at 10:55 a.m. to give clause-by-clause consideration to the bills.
Senator Joan Fraser (Chair) in the chair.
[English]
The Chair: Welcome to this meeting of the Standing Senate Committee on Legal and Constitutional Affairs. You have the agenda before you and I will propose, with your agreement, a small change.
Item 3 of the proposed agenda is consideration of a draft budget. That budget has been circulated — although I seem to have lost my own copy — and it is straightforward. I was wondering, senators, if you are agreeable to approving that budget before we into discuss the bills, to simplify things. The steering committee has seen the budget and approved it.
Hon. Senators: Agreed.
The Chair: As you can see, the budget is modest and follows the model of previous years' budgets. We have two former chairs sitting around the table; they can tell me if I am wrong, but I believe it adheres closely to past practice. You have agreed to consider it. Are there any questions about the budget?
Senator Milne: I point out that in the years when I chaired this committee, the budget numbers were more realistic. We kept it closer to our actual expenditures. We have leapt back up to $74,000 and some odd when last year we spent only $19,700.
The Chair: I think you will find that the biggest single item there, senator, is the provision for legal counsel. We have not necessarily used legal counsel, but as all honourable senators are aware, there is at least a possibility that a high volume of work will head toward this committee quickly.
We know that the Library of Parliament and the law clerk's office do yeoman work for us; but it is possible that even they might be swamped and we might need to turn to outside assistance to handle the volume of work, which is why it seemed worthwhile to keep that item in the budget. Senator Milne, we know you ran a tight ship.
Senator Milne: I will subside but I believe in truth in advertising and truth in budgeting, so I think we should try to keep it closer to a more realistic figure. I will agree with this budget this year; but, in future, people should take note that it should be closer to a more realistic figure.
Senator Watt: If we travel to the North and translation is required, does that money come from another budget or does that need to be taken into account?
The Chair: We would need a reference and presumably a budget for that. This budget is only a normal operating budget of the committee for the study of bills.
Is there any other discussion? Can I have a motion for approval? It is moved by Senator Jaffer, who put her hand up first. All in favour?
Hon. Senators: Agreed.
The Chair: Carried. Thank you very much, senators.
We now revert to number one on your agenda, which is clause-by-clause consideration of Bill S-207, an act to repeal legislation that has not come into force within ten years of receiving Royal Assent.
Is it agreed, senators, that the committee move to clause-by-clause consideration of Bill S-207?
Hon. Senators: Agreed.
The Chair: Shall the title stand postponed.
Hon. Senators: Agreed.
The Chair: Carried. Shall clause 1, the short title, stand postponed?
Hon. Senators: Agreed.
The Chair: Shall clause 2 carry?
Hon. Senators: Agreed.
The Chair: Carried. Shall clause 3 carry?
Hon. Senators: Agreed.
The Chair: Carried. I see no signs of dissention on any of these items. Shall clause 4 carry?
Hon. Senators: Agreed.
The Chair: Carried. Shall clause 5 carry?
Hon. Senators: Agreed.
The Chair: Carried. Shall clause 6 carry?
Hon. Senators: Agreed.
The Chair: Carried. Shall clause 1 carry?
Hon. Senators: Agreed.
The Chair: Carried. Shall the title carry?
Hon. Senators: Agreed.
The Chair: Carried. Is it agreed that this bill be adopted without amendment?
Hon. Senators: Agreed.
The Chair: Carried. Is it agreed that I report this bill to the Senate?
Hon. Senators: Agreed.
The Chair: Carried. Congratulations, Senator Banks.
Senator Banks: Thank you.
Senator Milne: Common sense reigns again on some matters.
Senator Banks: Thank you very much, honourable senators. I am grateful.
The Chair: This brings us to item 2 on our agenda, which is Bill C-13, An Act to amend the Criminal Code (criminal procedure, language of the accused, sentencing and other amendments).
Honourable senators, I understand amendments will be put forth by a number of senators, and I wonder if we could perhaps now circulate copies of the proposed amendments.
Hon. Senators: Agreed.
The Chair: The clerk has copies of some amendments, and there is a amendment from the government, so perhaps we could circulate all the proposed amendments in both official languages,
Senator Oliver: Madam Chair, has everyone received a copy of the amendments?
The Chair: Everyone is about to receive copies. I ask the clerk now to distribute copies of all proposed amendments.
Senator Watt: I do not have an amendment, but I would like to raise a general concern.
The Chair: Is this something to be addressed in the observations that this committee discussed we might append?
Senator Watt: It could well be, but I would like the rest of the committee members to be aware of what I am concerned about before I endorse the bill.
Those of you who were here when we heard witnesses are aware that I raised the question of whether this bill could have some consequences on the Inuit side when an Inuk faces a judge, such as a requirement for interpretation or making documents available to persons in their mother tongue. The answer I received was that this particular bill, in no way, shape or form, attempted to address that particular problem. This could be an issue. I think it is important, because we are no different from anyone. We are Canadian citizens, and we are taxpayers. We feel that our Canadian government must provide essential services to the people who need them.
As I mentioned, I do not have an amendment because I do not know how to fit it in. We are dealing only with the two official languages, French and English. I want it to be understood by everyone that I do not know what I will do at the end of day on this particular bill. I might abstain.
The Chair: I remind Senator Watt that this matter was discussed by the committee. We discussed the possibility of addressing that issue in observations, so the issue is not dead by any means.
Senator Oliver: The standard clause-by-clause books are here. It might be useful if they could be handed out to everyone before we begin. They are here at the back of the room.
The Chair: Those books are the large, thick binders that the government provided for us yesterday afternoon, which was late in the day. It is not your fault, Senator Oliver.
Senator Oliver: I have not seen them either, but they are here for the use of honourable senators. Perhaps they can be handed out now before we begin our clause-by-clause consideration.
The Chair: That is probably a good idea. Senators, I believe everyone now has the package of proposed amendments.
This bill is long. Before we move into the formal procedure, are you in agreement that I group clauses for carriage where no one has proposed an amendment, pausing when we come to the point at which the first proposed amendment would occur. By my reading of this package, that would be at clause 18 on page 7. That would mean, for example, that we would vote on clauses 1 through 7.
Senator Andreychuk: It would be helpful if you could give us the amendments to be sure we all have them.
The Chair: The ones before me are an amendment to clause 18 on page 7; an amendment to clause 19, also on page 7; proposed new clauses 21.1 and 21.2, both on page 9; a proposed new clause 45.2 on page 20, which is the government amendment; and an amendment to clause 46 on page 20. There are six amendments in total.
Is it agreed, honourable senators, that the committee move to clause-by-clause consideration of Bill C-13?
Hon. Senators: Agreed.
The Chair: Shall the title stand postponed?
Hon. Senators: Agreed.
The Chair: Shall clauses 1 through 17 carry?
Hon. Senators: Agreed.
Senator Baker: Is the chair suggesting that clauses 1 to 17 — about six pages — all carry?
The Chair: We have not been notified that anyone wished to amend any of those clauses. If someone wishes to vote against one of those clauses, let me know.
Senator Baker: I say it does not pass until we receive an explanation from the government. I would vote against the motion unless we receive the explanation.
The Chair: Is there a particular clause that you wish to register that vote on? Are there other clauses we could group?
Senator Baker: Before we move to the vote, I am asking for an explanation of clause 5. What does the government intend to do about clearing up the confusion over this matter? Madam chair, the government has seen fit to introduce amendments to the bill, something that was not contemplated the last meeting I attended.
The Chair: The minister told us he would be proposing.
Senator Baker: Did he do so when he appeared?
The Chair: Yes.
Hon. Senators: Agreed.
Senator Baker: Could the government explain why the minister would not agree to amend clause 5 to clear up the confusion therein? If the government will amend the bill —
The Chair: Senator Baker, may I suggest, then, that we vote upon clauses 1 through 4?
Senator Baker: Yes.
The Chair: Following that, we can hold a discussion if you wish on clause 5.
Senator Baker: Agreed.
The Chair: Honourable senators, shall clauses 1 through 4 carry?
Hon. Senators: Agreed.
The Chair: I believe officials are present. It would be appreciated if they could come to the table and identify themselves.
Senator Oliver: Specifically, we would like to hear from the official who can speak to clause.
Hal Pruden, Counsel, Criminal Law Policy Section, Department of Justice Canada: My name is Hal Pruden, and I am from the Criminal Law Policy Section, Department of Justice.
The Chair: Senator Baker, please address your questions to Mr. Pruden.
Senator Baker: From a simple reading of this legislation, this section is an overly broad one that captures the Internet.
We have heard evidence before this committee, and there has been some confusion as to what this clause actually deals with and would apply to once it is passed. I refer to a simple reading of the words. It says that it will make unlawful the transmitting, delivering or receiving of any message over the Internet involving bookmaking, betting or wagering.
We have had discussion in this committee as to what we can do to lessen the confusion surrounding the clause. When one reads the words, there is no confusion. It is simple: You take the words at their normal, grammatical meaning; the clause means what it says. Whoever does the first adjudication on this clause, whether it is a board or a court, they will come back, look at this clause and they will say, "Well, this means what it says." Then they will go back to this committee's proceedings to see what this committee said about it. I say that because this clause was not even mentioned in the House of Commons during any proceedings. The word "Internet" was not used by the minister or anyone else.
Therefore, it is important that the proceedings of this committee be clear as to what the intent of the government is on that clause. Either it would be amended to qualify what the words say in their ordinary meaning, or there would be some clear expression of intent on the part of the government that these words do not, in themselves, mean what they appear to mean. That is my objection.
The Chair: Do you have any comments, Mr. Pruden?
Mr. Pruden: I would say it is true that courts will look at the words of subsection 202(1)(i); we see how it is proposed to be amended. I suggest they will also look at other words within all of section 202. I am thinking of subsection 202(1)(e) in particular. It makes it an offence to engage "in bookmaking or pool-selling, or in the business or occupation of betting, or makes any agreement for the purchase or sale of betting or gaming privileges, or for the purchase or sale of information that is intended to assist in bookmaking, pool selling or betting."
You will see that, unlike the current subsection 202(1)(i), there is no limitation on the means by which the person may engage in bookmaking. In the current 202(1)(i), there is a limitation to radio, telegraph, telephone, mail or express. Therefore the intention is to modernize 202(1)(i) by taking away those references to radio, telegraph, telephone, mail or express. This amendment will make it look the way other paragraphs within subsection 202(1) presently look, and it will modernize it because it will not be limited to telephone, mail, express, telegraph or radio. Indeed, it would also cover any means of telecommunication, which includes communication by computer via the Internet.
As the government department sees it, the amendment is modernization of the language in subsection 202(1)(i) to make it look like the other provisions in section 202. Those other provisions are not currently limited to a small cohort of telecommunication means.
The bookie right now who, sitting in Toronto, under subsection 202(1)(e), engages in bookmaking either on the telephone or on the Internet via computer, is caught by subsection 202(1)(e) for engaging in bookmaking. If that bookmaker takes a holiday to Florida and uses the telephone or Internet to call people in Ontario, and engages in bookmaking, the offence takes place in whole or in part in Canada. In the case of Florida, it is in part in Canada because one person is in Canada on the phone or Internet and the other is in Florida.
The Supreme Court of Canada, in the case of Libman v. The Queen, said if an offence takes place in whole or in part in Canada, the Canadian court may be the appropriate forum for prosecution of the offence. What is not covered in the existing subsection 202(1)(e) and not in any way changed in subsection 202(1)(i) by the proposed amendment, is the issue of extraterritoriality. In other words, it is an issue of extraterritoriality if the person who is in Florida uses the telephone or Internet to call a person in Florida to send information about odds or betting information. That is extraterritorial, and we are not making that an offence.
There would be a specific need, if there were any thought of making an extraterritorial offence, to point that out clearly in the Criminal Code. For example, if someone is engaging in child sex tourism in Thailand, that act takes place wholly in Thailand; but if there is an extraterritorial offence, that person is captured and can be prosecuted in Canada.
That is not the case in this subsection 202(1)(i). If people are outside Canada — in Florida, for example — sending or receiving betting information to a person in Florida by another person in Florida, that situation is not captured by this amendment. That is why it is seen as modernizing.
Senator Baker: It would capture the offence if someone were in Canada receiving the information. Is that correct?
Mr. Pruden: If a person in Canada receives that betting information "knowingly and wilfully," which is a specific intent requirement within the present provision and in the proposed provision, that person could be charged if that is the desire of the police and the prosecutor. However, the Crown, in order to convict, would need to prove beyond a reasonable doubt that the message was wilfully and knowingly received, not only accidentally.
Senator Baker: A huge business in Canada that everyone understands exists is gambling on the Internet. As a former prosecutor, you recognize that. If that amendment would capture those people, as it appears to do, this is a huge change in the law.
If I could understand exactly what you are talking about here, are you saying that section 202 of the act applies only if there are instruments — machines or some organization — that originate and take place in Canada; that activity is what is covered under 202, and therefore this section would only cover that type of operation? I am asking you this. Do you know the case of Regina v. Starnet?
Mr. Pruden: Yes, I do.
The Chair: Senator Baker, as you know, it is extremely unusual to go into re-interrogation of witnesses in clause by clause consideration. I have given you a bit of leeway here, but we have a long way to go on this bill and I ask you please to proceed expeditiously.
Senator Baker: Fine, Madam Chair, but this is such a huge amendment that was missed by the House of Commons and that is the purpose of the Senate.
The Chair: However, it was discussed in this committee.
Senator Baker: It was; but it was missed by the House of Commons twice when the bill went through the normal procedure.
You have already said that if someone is wilfully and knowingly playing poker on the Internet, they could be caught up in this section.
Mr. Pruden: I do not know whether the prosecution would choose to look at sending or receiving a message in terms of a player; or whether the prosecution would prefer to charge the organization that is engaging in bookmaking, pool-selling or in the business of betting under subsection 202(1)(e); or if the prosecution would prefer to use the section 206 offences in relation to games of chance, if it were a poker situation.
In terms of betting over the Internet, there are permitted forms of gambling using the Internet. I think of subsection 204(1)(b), which permits private individuals who are not engaged in the business of betting to make bets between themselves; and that could be done using the telephone, the Internet or face-to-face.
The Chair: I will cut off this discussion in about three minutes. Senator Joyal wants to intervene at this point.
Senator Joyal: One witness we heard on this section of the bill propose that we add the words "in Canada" after the word "receives" on the second line of paragraph (i). The text would read "wilfully and knowingly sends, transmits, delivers or receives in Canada any message that conveys any information. . . ." What is your opposition in principle to that amendment?
Mr. Pruden: In principle, it would make this offence in paragraph (i) look different from the other offences in subsection 202(1). I mentioned subsection 202(1)(e), which is an offence of engaging. It does not say "in Canada."
If we say "in Canada," the bookie who goes on vacation to Florida and chooses to use the telephone or Internet either to engage in bookmaking back to a person in Toronto or to send and receive a message with betting information — sending a person in Toronto the odds — then that person would not be captured. The person would not be captured even though the Supreme Court of Canada, in Libman v. The Queen, has told us that if an offence takes place, in whole or in part in Canada — and in the Florida and Toronto situation, the offence is taking place in part in Canada — that the Canadian court may be the appropriate place to have the prosecution of the offence.
If we take the wording "in Canada," we can forget — at least for paragraph (i) — about having a person who has gone on vacation to Florida and is bookmaking back to Toronto prosecuted under paragraph (i); that would be the difference.
The Chair: Senator Baker, are you proposing an amendment?
Senator Baker: Of course.
The Chair: I remind you that you can propose an amendment at third reading, too, if you are not prepared today.
Senator Baker: Okay, but my concern here is the privacy of the Internet service that Internet providers provide. That privacy, which is used by doctors, lawyers, individuals and businesses, would be invaded by the monitoring to make sure that someone was not gambling on the Internet. That is my major concern and that is a huge question. I will defer to your judgment, Madam Chair, and await third reading.
Senator Andreychuk: Perhaps this point will be the debate in the third reading. This is not the first time that Internet providers have been the subject of debate. It was exactly the same way in child pornography.
At that time, the minister came and gave an assurance the provision was not targeting Internet providers. I cannot remember the minister, but he or she provided information that the intent was not that. Only if providers were doing so wilfully and knowingly — in other words, moving from Internet provider to criminal perpetrator — could they be vulnerable. However, by virtue of being Internet providers, they were not vulnerable.
This minister — different government, I appreciate, but that has no bearing for me in this committee — is giving the same assurances on exactly the same kinds of issues. In my humble opinion, if we did not have an amendment on Bill C-15A a couple of years ago, I see no reasons for amendments at this time.
The Chair: However, as we noted, the possibility of carefully crafted amendments always exist at third reading.
Shall clause 5 carry?
Some Hon. Senators: Agreed.
The Chair: Opposed?
Senator Joyal: Abstention.
Senator Di Nino: I abstain as well.
Senator Baker: Abstention
The Chair: Carried, on division, with three abstentions.
Honourable senators, shall clauses 6 through 17 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Honourable senators, we have received the text of an amendment proposed to clause 18. Who wishes to move that amendment?
[Translation]
Could you read your amendment?
Senator Chaput: Yes.
That Bill C-13 be amended in clause 18, on page 7, by replacing lines 3 and 4 with the following:
"appears, shall advise the accused of his or her right to apply for an order under subsection".
Would you like me to read it in English as well?
[English]
The Chair: I can do that for you. It is moved by Senator Chaput that Bill C-13 be amended in clause 18 on page 7 by replacing lines three and four with the following: "appears, shall advise the accused of his or her right to apply for an order under subsection".
[Translation]
Senator Chaput, could you explain your amendment?
Senator Chaput: What is different in this amendment is that the judge himself must inform the accused of their right to stand trial in the official language of their choice. It must come directly from the judge.
[English]
The Chair: Is there any discussion?
Senator Baker: I wonder, Madam Chair, since it was not visited prior in this meeting, whether one of the witnesses from the department could explain to us, first appearance.
The Chair: Certainly we can, but this issue was raised by the Barreau du Québec, Senator Baker.
Senator Baker: The first appearance was judged to be at what point: at the point of plea, or at the point when someone actually first appeared who spent all night in jail? What is the first appearance?
The Chair: I am not sure we discussed the definition of first appearance.
Senator Baker: That is important, because that is the substance of this amendment that the government proposes on first appearance.
The Chair: The bill refers to first appearance. The amendment proposed by Senator Chaput does not touch the reference to first appearance.
Senator Baker: I am wondering what "first appearance" means in this bill, which is an amendment to subsection 530(3) of the Criminal Code.
The Chair: Honourable senators, it seems to me that if we spend a lot of time revisiting things that we could have visited in testimony when we had officials before us and raising issues that were not raised, we will be here for a long time.
Senator Baker: I missed it. I put on the record, Madam Chair, that first appearance is not the time to do this.
The Chair: Thank you. Are there any other comments on the language of the proposed amendment?
Senator Andreychuk: I believe what Senator Chaput is attempting by this amendment, although I have recently seen it so this is only my impression, is to force the justice of the peace or the judge to advise, as opposed to the justice of the peace or the judge ensuring.
Having been out in the field and having practiced in rural Saskatchewan as well as in urban areas, it seems to me there must be a certain trust that we have a good system. In some cases, it may be advisable and efficient to have the justice of the peace or the provincial court judge do so. However, I think this issue has been vetted through the provinces and the territories with a certain flexibility to allow the system to work according to the practices and procedures of an area where the Chief Justice may have some reason to have someone else do it but ultimately be responsible for ensuring. It might be a better route to go, identifying the variances of our country, than having it mandatory, which may make it impossible or difficult. I hope that we have trust in the system to allow that little measure of flexibility.
Senator Joyal: If I understand correctly, the purpose of the Senator Chaput's amendment is essentially to restore the present subsection 530(3), which reads:
The justice of the peace or provincial court judge before whom an accused first appears shall . . . .
It is not "cause to be informed." It is the judge himself. That is in the code presently.
We heard testimony that it is better for an accused to be in front of a judge when he or she wants to know about the implication or meaning of having a trial in his or her language or in the other language. The way that the Quebec bar reads that section, as you will remember, and I am referring to page 3 of the Barreau du Québec presentation, there is no direct possibility for the accused to know about the implications of the decision he or she will make to have a trial in his or her own language, but if a person is in front of justice of the peace or provincial court judge, they can enquire about the implications. If it is "cause to be informed," they could tender a sheet of paper saying, "You have the choice to be tried in English or French, and you mark an X and that is it. You do not have the direct contact with the higher officer that is a justice of the peace or provincial court judge." The Barreau du Québec argued that point, and I tend to conclude that they are right.
Senator Andreychuk: As a bit of rebuttal, we heard the Quebec bar, but we also received a letter from the Canadian Bar Association indicating that they had been part of the process and that they very much support the bill in the form as it is now. That leads me to believe that it may have been that way in the previous code, but there is some merit to listening to the Canadian bar and to the provinces who say that, in the end, that bit of flexibility would probably benefit the accused. I think it is modernizing the system, and we recognize that there are players within the judicial system beyond the judges and the lawyers.
The Chair: Senators may not have had a chance to check their mail. That letter came in yesterday, I believe. As Senator Andreychuk said, the Canadian Bar Association likes this bill. It lists a number of the clauses of this bill that it likes. It does not address either way the question of the language of trials or the language of the accused or anything. It does not say it is against or for.
Senator Oliver: They were involved in the process and consulted widely.
The Chair: Indeed.
Senator Di Nino: I take exception to one comment that Senator Joyal made. The clause does not say that the judge will allow someone else to inform. There is a specific, strong word: "ensure." "Ensure" means that judges take a role in making sure they have satisfied themselves that this has happened. I think there is a value to having the flexibility, whenever the justice of the peace or the justice cannot be there or for whatever reason, to make sure that the advice is given, that the message has been passed on, and that they ensure it is passed on. It is appropriate to have someone do this on their behalf. I think that is the difference between Senator Joyal's interpretation and mine.
Senator Joyal: I do not think there is a contradiction because, as you point out, the judge can ask for someone else to inform the accused.
Senator Di Nino: It is not a matter of asking. It does not say that.
Senator Joyal: It says, "shall ensure that they are advised of their right." However, it does not say which way, shape or form. When the accused is in front of judge or the justice of the peace, there is a direct contact between the accused and the judge. This key preliminary decision might define the outcome of the trial if the accused is not informed properly of the implications of being tried in the accused's own language or in the other language.
In my opinion, the present code has maintained the fact that there is a direct contact and there is the capacity for the accused to ask questions of the judge or the justice of the peace, to understand the scope of the implications of the right to have the trial in the accused's own language. The interpretation of that provision is so loose that the direct contact will be lost.
That is the way the Barreau du Québec has interpreted it.
Senator Di Nino: As far as I am concerned, the amendment recognizes that, sometimes, direct contact is not possible. Therefore, to ensure the act of transmitting that particular advice is completed, they may entrust someone else. I think that approach is a more modern way of doing it and ensuring it, as my colleague says. I do not want to use that word, though; we disagree on that.
Senator Oliver: The old rule was only to give protection to an accused who was unrepresented. In the new system, one of the problems is: If you have a large urban area where there are, say, 200 or 300 people coming before a single judge in one day, it will take the time of that judge to give that advice. It will have the ultimate effect of slowing up the court process and causing more delays. That is the problem with the amendment. The last thing we want is further delays in the court.
Senator Joyal: I understand your point, senators, but that is precisely my preoccupation. The judges are loaded with all kinds of responsibilities, but I believe this right is a fundamental right of an accused according to the Constitution to be tried in his or her language. As the court has said in Bollack, this right is a constitutional one, not a procedural one. The first time the person exercises that right is in direct contact with the judge and I think that contact must be maintained. That is why I feel that the present obligation of the judge to explain the implications to the accused is the right one to maintain.
I think that the argument of a judge being loaded with work or other compelling obligations does not impact on the conclusion that the justice of the peace or the judge has the responsibility to explain to the accused the implications of a trial in the language of choice.
Senator Bryden: My concern is that this amendment is more concerned with streamlining the administration of justice so that they can push 300 people instead of 200 people through in a day. To do that, would it not be possible for the judge to ensure that a piece of paper notifying the accused of the right to be tried in the accused's official language is given to the accused so that the accused can check a box and sign the form? The judge receives 50 of these forms and they have all been signed. That is it.
If changes are to be made to fundamental constitutional rights, I think that the interest of this committee is to ensure that those changes are for benefit the accused and for the opportunity to have a full and fair hearing in the language of the accused's choice. That right is what presently exists. Any change in that right will prompt the courts to look at the change and question why it was made. When I look at it, it means that something less than direct contact with the judge — which is what we have now — is adequate. That situation allows the courts to run more people through the machine and can save us a lot of money, but, in my opinion, it does not do much for the constitutional rights of the accused. We are better off with the amendment.
The Chair: Are honourable senators ready for the question on this amendment?
Hon. Senators: Question!
The Chair: It has been moved by Senator Chaput:
That Bill C-13 be amended in clause 18 on page 7 by replacing lines 3 and 4 with the following:
"appears, shall advise the accused of his or her right to apply for an order under subsection".
All those in favour?
Some Hon. Senators: Agreed.
The Chair: Opposed?
Senator Oliver: No.
The Chair: Abstentions? In my opinion the "yeas" have it, on division. Carried on division.
Shall clause 18 carry as amended?
Some Hon. Senators: Agreed.
Senator Di Nino: On division.
The Chair: Carried on division.
For Clause 19, we have been given the text of a proposed amendment. Senator Chaput, would you like to speak?
[Translation]
Senator Chaput: I move:
That Bill C-13 be amended in clause 19, on page 7, by replacing, in the English version, lines 31 and 32 with the following:
[English]
"(a) cause the portions of an information or indictment against the accused that are in an".
[Translation]
The Chair: Thank you. It was moved by Senator Chaput:
That Bill C-13 be amended in clause 19, on page 7 —
Shall I dispense?
Hon. Senators: Dispense.
The Chair: Would you like to explain your amendment, Senator Chaput?
Senator Chaput: This amendment would clarify the English text so that it matches the French text.
The Chair: Thank you very much.
[English]
Shall there be a discussion? I think perhaps some senators were having discussion. Senator Chaput explained that this amendment is designed simply to make the English text match the French text.
Hon. Senators: Agreed.
Senator Andreychuk: I guess I will abstain because I need to look at the amendment further. I think they are in sync now; you are saying they are not. I would like to think about it. I will not vote in favour of it but rather abstain to consider whether the English already covers this point.
The Chair: It is fair. All in favour?
Some Hon. Senators: Agreed.
The Chair: Opposed? Abstentions?
Senator Andreychuk: Abstain.
The Chair: Carried with one abstention.
Shall clause 19 carry as amended.
Hon. Senators: Agreed.
The Chair: Shall clause 20 and 21 carry?
Hon. Senators: Agreed.
Senator Watt: I want to look at the proposed amendment.
The Chair: We are not there yet, Senator Watt.
Senator Watt: Okay.
The Chair: What is proposed is a new article following clause 21.
The Chair: Shall clauses 20 and 21 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Now we have before us the text of a proposed new clause, clause 21.1.
Senator Joyal: I move:
That Bill C-13 be amended, on page 9, by adding after line 3 the following:
"21.1 The Act is amended by adding the following after section 532:
532.1 The Minister of Justice shall prepare and cause to be laid before each House of Parliament an annual report for the previous year on the operation of the provisions of this Part that includes:
(a) the number of orders granted under section 530 directing that the accused be tried before a justice of the peace, provincial court judge, judge or judge and jury who speak both official languages of Canada;
(b) the number of trials held in French outside the Province of Quebec and New Brunswick; and
(c) the number of trials held in English within the province of Quebec.".
[Translation]
Senator Joyal moved:
That Bill C-13 be amended on page 9, by adding after line 4 the following:
[English]
Shall I dispense?
Senator Joyal, would you like to explain your proposal and we will have discussion?
Senator Joyal: The amendments stem from the fact that, as we have heard from the Barreau du Québec, the bill contains some sections that are an improvement over the current act regarding the accessibility of the trial in one language or the other, especially outside the Province of Quebec. This excludes New Brunswick and Quebec for specific reasons. On the other hand, if the bill as it stands is applied, on the substance of it, that could open the door in Quebec for a reduction of accessibility to trial in the minority language in that province.
It would have the unintended consequence, if the bill were to be given a strict interpretation according to its substance versus the practice in Quebec, which is larger and covers more accessibility in the minority language than what is provided for in this bill. If a government wanted to apply the bill strictly, it could result in less protection than is enjoyed in Quebec these days. To monitor that issue, the Minister of Justice should ask the Canadian Centre for Justice Statistics —which we have heard about many times around this table — to give us the statistics on the number of trials, so that we can monitor them on a yearly basis for unintended consequences of this bill.
It does not change the substance of this bill; it simply gives us the capacity to monitor the implications of the bill better on the basis of testimony we received from the Barreau du Québec, and from practices of the Quebec criminal justice system that I know personally — I would not say for time immemorial but at least since section 133 has been part of our Constitution.
Senator Watt: I, too, have a similar concern to the one outlined by Senator Joyal but first I would like to ask him something directly, as I did not have the time to talk to him beforehand.
I know he is much concerned about, and has been directly involved effectively in regard to minority groups. That is still a problem and I guess I am here for that reason. Along the lines of the proposed amendment that he highlighted for consideration, would you consider adding a paragraph (d) to the amendment — the number of trials held in the third language with translation? Would that help if we put that suggestion into the observations accompanying this bill?
Senator Di Nino: Amendment, not observation.
Senator Joyal: I am not sure the system is ready for that paragraph at this point in time. I think we could consider it in the observations — I know a draft will be circulated later in our session this morning.
Your concern, of course, is about Aboriginal languages. Even the bill refers to Nunavut at that point in time. There is no doubt that the Criminal Code recognized the different reality of Aboriginal peoples in Canada on the sentencing aspect of the code, and we are familiar with those sections of the code.
If we are to make any progress in relation to the use of Aboriginal languages in terms of criminal justice, it would be after steps have been taken that are not in existence presently in a practical way, the way that you would like to see it achieved. That is why, in our observations, we can refer to that reality and better develop a plan for how that could be monitored, rather than by stating statistics on a reality that does not exist in the legislation.
That is why I feel the statistics that are contemplated at this stage are statistics that the law provides for the Minister of Justice to maintain. At this stage, the Minister of Justice has the responsibility to make sure that trials are accessible in both official languages — no more.
There might be circumstances in future whereby criminal justice could be rendered in Aboriginal languages. Of course, you are thinking about the North, in Nunavut especially. However, at this stage, I think we should make it at the observation level, not in the Criminal Code.
The Chair: Senator Oliver, who is the sponsor of this bill, has been waiting patiently. Can you yield to him for a moment?
Senator Watt: Can I complete my thought? I am not going that far at this point. All I am trying to point out here, Senator Joyal, is the reality of what is happening today. I am limiting the amendment to the language with translation. I am not going further. I am trying to state the reality today.
If we did not include that in the amendment, I am worried about what will happen when the budget takes place to cover the expenditures of this country. Part of it relates to the Aboriginal people; if this requirement is not mentioned, the service provided today could be altered. I do not want to see that happen, which is why I point it out rather than going a step further in terms of your observation. That step is definitely down the road. I am talking about the reality today. I want you to take into consideration what I propose here.
Senator Oliver: I find this amendment a bit unusual because it is a highly administrative amendment asking for the number of orders and so on. Normally, we receive this kind of information when ministers or others appear before our committee.
However, my main concern is that this legislation is a federal statute, but the information that is sought is provincial and in provincial hands. It will impose a major burden on the provinces to obtain this information. There has been absolutely no consultation with the provinces that this requirement will be thrust upon them. It will be a surprise to them, as well as an administrative burden.
The department has tried before and they found it hard to obtain these numbers. They have not been successful at all in obtaining this kind of data. Putting it here will not help the process.
It is more of an administrative thing. I think that at least we should have consulted with the provinces first and said to them that they are the people who have this information because it is coming up in the courts of their province, and let us talk about a way of obtaining it. However, I do not think this bill is the place to do that in the absence of that kind of consultation.
Senator Joyal: I am not impressed by the argument that the provinces have the data but they do not want to release it. That is precisely the objective of this section. It is to know more.
Senator Oliver: They do not have that data. They have not collected it.
Senator Joyal: They can collect it through the Canadian Centre for Justice Statistics. They have collected a variety of data that pertains to the administration of justice that we have heard around this table many times.
Senator Oliver: About the number of orders granted?
Senator Joyal: For instance, when we discussed the bill on the youth criminal justice system, piles of data existed. To me, the amendment does not really impose an administration over and above what is already in existence at the provincial level.
Senator Oliver: Are you saying they must collect this kind of data now — all of these questions?
Senator Joyal: Most of that data exists already in the system in one way or other.
Senator Oliver: I am instructed it does not.
Senator Joyal: You are instructed, but I think the reality is, if you go into any court of justice — for instance, if we are in a province where the minority language is French, such as New Brunswick, or in Quebec, where it is English — they will know how many trials are in French or English on a given day. It is not really metaphysical to know if a trial is in English or French on the criminal roll. Any clerk of the court will tell you if the trial is in English or French.
We are not trying to expand the scope of figures that exists already in any court in the justice system in Canada. This is not really new. Once an accused has been informed by a justice of the peace or a judge of the provincial court that the accused may have the trial in French or in English, the accused chooses and the clerk of the court registers it immediately. It is a preliminary decision, so these statistics exist. It is easy to put the numbers together. There is nothing that could impose the hiring of other civil servants to compile the numbers on a day-to-day basis. They compile so many statistics; you would be amazed how diverse the statistics in the system are and how easy they are to obtain.
Senator Oliver: The department has tried before without success. Therefore, it is not that easy.
Senator Joyal: They could try again.
Senator Andreychuk: Obviously, this discussion is at an impasse. I find it uncomfortable.
Again, what is our task? Our task is to pass legislation and not to micromanage the Department of Justice, Environment Canada or any department. It seems to me that this issue goes much further than our mandate. It is not substantive or procedural law we are dealing with. We are now saying we want to micromanage in some way.
I hope this kind of comment — which is good information and information we need — would be part of an observation as a first test. By that I mean we would put in our observations that we would ask the minister to prepare this kind of material. He could go back to the province then with the knowledge that the request is legitimate and that information is needed. We would see if they made an honest effort.
There is an implication of mistrust here that I do not think has been the way the Standing Senate Committee on Legal and Constitutional Affairs has acted before. Somehow or other, we are saying we will pass this bill but we are uneasy at the standard in Quebec and the standard elsewhere, therefore we will go right in there to make sure it is done. I have a letter from the Canadian Bar and I have heard witnesses that were moving in the right direction.
I think we have a full system of lawyers, defence, prosecution, judges, associations and non-governmental organizations who monitor situations. I do not think we need to micromanage. We need to suggest to the government what they should do that would be helpful. I appeal to Senator Joyal not to go forward with this amendment but to embody what he has here as an observation and suggestion. Then we can monitor to see if the Department of Justice and the provinces respond to us.
Senator Joyal: My only answer, honourable senators, is that we also have the testimony from a lawyer of the Barreau du Québec who is involved every day in the criminal justice system. The lawyer concluded clearly that this bill, regardless of how good it is, might have unintended consequences in Quebec. I refer to opening the door for a reduction of the coverage of the criminal justice system that exists in support of the minority. As a senator from Quebec, I cannot vote for this bill without ensuring I have taken the proper steps to monitor that situation. If I vote for this bill, I want to know that at some point in time, if something is wrong in the system, we will be informed and we — the government, the minister — will be in a position to take the appropriate steps. That is essentially the purpose.
The purpose is not to try to create an administrative nightmare. We must ensure for the Province of Quebec that there is not less language choice in the future than there is and has been.
Senator Andreychuk: I have a small rebuttal. The witness pointed out a possible shortcoming. Excellent lawyers will take any argument and wonder if there is some weakness in it, and he pointed out a weakness. I put equal if not greater weight on the Canadian Bar Association. With respect, honourable senator, we disagree.
Senator Joyal: Honourable senators, I will restate my point of view. You know the deference I have for Senator Andreychuk's opinion and the basis of her experience. Nothing in the letter from the Canadian Bar addresses the issue of language. They do not go at length into the studies of the section of this bill that deals with languages.
Senator Oliver: Based on their letter, we do not know if they did.
Senator Di Nino: I will be brief. I do not believe there is a weakness in the bill and I do not believe that the witness suggested that. Senator Joyal said there may be an area where there could be a potential problem. It sounds to me like we have a solution and we are looking for a problem. The problem does not exist at this point. All this proposed amendment will do is increase the bureaucracy that many of us believe is already too large. If the problem exists, we will deal with it at the appropriate time.
I was not here for all the hearings as I am a new member of the committee, but I was here when the Barreau du Québec came before us. They did not indicate this provision was a problem, but merely highlighted a point. I think this proposed amendment is a solution looking for a problem, and I will not support it.
Senator Joyal: I want to read one line from the Barreau du Québec brief:
[Translation]
The proposed amendments to Part XVII could unfortunately set language rights back.
[English]
That quote is from page 3 of their brief, honourable senators.
The Chair: I think we have canvassed this issue thoroughly. Various positions are clear. I will go to the vote.
On the amendment proposed by Senator Joyal for a new clause 21.1, all in favour?
Some Hon. Senators: Agreed.
The Chair: Opposed?
Senator Di Nino: Opposed.
The Chair: Carried, on division.
We have before us the text of a proposed new clause, clause 21.2. I believe this amendment is Senator Joyal's.
Senator Joyal: I move:
That Bill C-13 be amended, on page 9, by adding before line 4 the following:
"21.2 The Act is amended by adding the following after section 533:
533.1(1) Within three years after this section comes into force, a comprehensive review of the provisions and operation of this Part shall be undertaken by any committee of the Senate, of the House of Commons or of both Houses of Parliament that may be designated or established by the Senate or the House of Commons, or by both Houses of Parliament, as the case may be for that purpose.
(2) The committee referred to in subsection (1) shall, within a year after a review is undertaken under that subsection or within any further time that may be authorized by the Senate, the House of Commons or both Houses of Parliament, as the case may be, submit a report on the review to Parliament, including a statement on any changes that the committee recommends."
The Chair: Senator Joyal has moved that Bill C-13 be amended on page 9 by adding — shall I dispense? Discussions?
Senator Joyal: It stems from the previous amendment. Considering the importance of improving minority access to the criminal justice system by allowing them to speak in the language of their choice, I think it is necessary for Parliament to monitor the improvements that are made. Also, as I said, the unintended consequences of those changes need to be watched. We all hope this legislation will be beneficial for the rights of minorities. I think it is up to Parliament to have the responsibility to monitor that situation on the basis of the information that will be made accessible to them.
The Chair: I think this language is fairly standard for a review clause, if I can call it that.
Senator Joyal: Yes, Madam Chair, it is essentially the same as the language in Bill S-3 that provides for a review of the two special provisions of investigative hearing and preventive arrest after five years of their implementation. It is fairly standard. There is already a proposal to introduce such a clause in the Criminal Code.
The Chair: Discussion?
Senator Oliver: As with the other previous amendments, this amendment will employ significant new government resources that have not been authorized and there is no authority to support this provision. It seems that the main argument is that what is requested and sought by this proposed amendment can be done easily by the House of Commons Committee on Official Languages and by the Standing Senate Committee on Official Languages. These committees have the power and the jurisdiction and, frankly, that responsibility should be part of their job. I do not think that we need yet another amendment forcing them to do what they should be doing in those committees. We have committees that are eminently qualified with wonderful people on them that can do that job now.
Senator Joyal: Honourable senators, the Senate or the House of Commons can designate, within three years of the adoption of this bill, the Official Languages Committee to do it or the Senate committee to do it, depending on the will of the Senate or the chamber. That does not exclude the Official Languages Committee from the mandate that the Senate would give them by this amendment to look into the way in which the criminal justice system improves accessibility to minority languages. On a constitutional issue as important as criminal justice and accessibility to a minority language, it is fair for Parliament to monitor it on a regular basis by giving the signal that this right is a fundamental one and, per se, Parliament is serious about monitoring not only the implementation but the improvements of those rights. The code provides for the minimum but there is more to be done, and we all know it. This amendment is but a step in the right direction. We expect it will produce some positive results and it will be up to us to monitor it in a way that we can maintain our commitment to serve the principle of equality — anglophone minority in Quebec and francophone minority outside Quebec.
Senator Oliver: I do not think we need an amendment to empower the Official Languages Committee to do its job. They can easily do everything suggested in this proposed amendment without this proposed amendment. That is my point.
The Chair: Is there further discussion?
Senator Milne: I point out that it has been the practice of this committee to add review clauses on almost every bill that has come before it over the last few years.
Senator Andreychuk: Often, it is done to obtain our approval to pass a bill without amendments. Would you like to reconsider the amendments?
The Chair: The voice of historic experience and collective memory.
Senator Andreychuk: I have been here too long.
The Chair: We are ready for the vote on Senator Joyal's proposal to amend the bill to include a new clause 21.2. All in favour?
Some Hon. Senators: Agreed.
The Chair: Opposed?
Senator Oliver: No.
Senator Di Nino: On division.
The Chair: Carried, on division.
Senators, shall clauses 22 through 45.1 —
Senator Joyal: Did you put the new clause to a vote?
The Chair: Yes, I did; and it carried.
Senator Joyal: Thank you. I want to be sure.
The Chair: Honourable senators, shall clauses 22 through 45.1 carry?
Hon. Senators: Agreed.
The Chair: Carried.
We have before us a proposal for a new clause 45.2. This amendment is proposed by the government and because it is highly technical in nature, I will ask which senator is moving this amendment? Senator Oliver is moving this amendment. Senator Oliver, do you wish to read the whole amendment into the record?
Senator Oliver: It is up to you, Madam Chair. If you want me to, I will do so. Otherwise, I would like to call on some officials.
The Chair: We are eager to hear from the officials. Can we take it as having been read?
Senator Bryden: It contemplates dealing with a bill that is not before us.
The Chair: Would you please read it into the record, Senator Oliver?
Senator Oliver: The amendment reads:
That Bill C-13 be amended by adding after line 16 on page 20 the following:
45.2 (1) If Bill C-2 introduced in the second session of the Thirty-ninth Parliament and entitled the Tackling Violent Crime Act (the "other act") receives Royal Assent, then subsections (2) to (4) apply.
(2) If subsection 21(3) of the other Act comes into force before section 7 of this Act, that section 7 is replaced by the following:
7. Section 255 of the Act is amended by adding the following after subsection (3.2):
(3.3) For greater certainty, everyone who is liable to the punishment described in any of the subsections (2) to (3.2) is also liable to the minimum punishment described in paragraph (1)(a).
(3) If section 7 of this Act comes into force before subsection 21(3) of the other Act, that subsection 21(3) is replaced by the following:
(3) Subsections 255(2) to (3.1) of the Act are replaced by the following:
(2) Everyone who commits an offence under paragraph 253(1)(a) and causes bodily harm to another person is guilty of an indictable offence and is liable to imprisonment for not more than 10 years.
(2.1) Everyone who, while committing an offence under paragraph 253(1)(b) causes an accident resulting in bodily harm to another person is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years.
(2.2) Everyone who commits an offence under subsection 254(5) and, at the time of committing the offence, knows or ought to know that their operation of the motor vehicle, vessel, aircraft or railway equipment, their assistance in the operation of the aircraft or railway equipment or their care or control of the motor vehicle, vessel, aircraft or railway equipment caused an accident resulting in bodily harm to another person is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years.
(3) Everyone who commits an offence under paragraph 253(1)(a) and causes the death of another person as a result is guilty of an indictable offence and liable to imprisonment for life.
(3.1) Everyone who, while committing an offence under paragraph 253(1)(b) causes an accident resulting in the death of another person is guilty of an indictable offence and liable to imprisonment for life.
(3.2) Everyone who commits an offence under subsection 254(5) and, at the time of committing the offence, knows or ought to know that their operation of the motor vehicle, vessel, aircraft or railway equipment, their assistance in the operation of the aircraft or railway equipment or their care or control of the motor vehicle, vessel, aircraft or railway equipment caused an accident resulting in the death of another person, or in bodily harm to another person whose death ensues, is guilty of an indictable offence and liable to imprisonment for life.
(3.3) For greater certainty, everyone who is liable to the punishment described in any of subsections (2) to (3.2) is also liable to the minimum punishment described in paragraph 1(a).
(4) If subsection 21(3) of the other Act comes into force on the same day as section 7 of this Act, then that section 21(3) is deemed to have come into force before that section 7 and subsection (2) applies as a consequence.
The Chair: Thank you, Senator Oliver. I now invite the officials to respond.
[Translation]
Anouk Desaulniers, Senior Counsel, Criminal Law Policy Section, Department of Justice Canada: The proposed amendment is a coordinating amendment between the bill before you today and Bill C-2, which, as far as I know, has been returned to the House after committee stage.
[English]
Senator Oliver: It is in the Senate for second reading now.
Ms. Desaulniers: That is even better. It will be before this committee.
The Chair: It may be referred to this committee.
[Translation]
Ms. Desaulniers: Thank you for that information. The amendment is necessary for two reasons. The first is that Bill C-13 and Bill C-2 propose the creation of subsection 255.3.1. A numbering problem must be sorted out, but I must say that this problem has been fixed in the past. As you know, Bill C-2 is an amalgamation of a series of bills; the provisions concerning impaired driving were in Bill C-32. Last session, Bill C-32 was introduced after Bill C-23, so Bill C-33 made the coordinating amendment before you today. However, because of a time factor, the amendment is now required in Bill C-13, the former Bill C-23. The amendment would solve the numbering problem and would mean that since you carried clause 7, which would make minimum punishments applicable to all impaired driving offences, even those involving injury or death, to be logical, this amendment would also have to be applied to the new situations for which penalties are created in Bill C-2. We want the minimum that you carried in clause 7 before you, to be applied consistently to all offences involving impaired driving or failure to comply or driving with a high blood alcohol level. This amendment is needed to reflect Bill C-2, which proposes new situations involving impaired driving.
[English]
Senator Jaffer: I have a point of order, Madam Chair.
The Chair: Can it wait until Ms. Desaulniers has finished?
Senator Jaffer: I thought she had finished.
[Translation]
Ms. Desaulniers: There is something else, paragraph 4, that I must share with you. The amendment provides for three situations. The first is if Bill C-13 receives Royal Assent before Bill C-2; the second is if the opposite happens; and the third is if both proceed at the same time.
[English]
The Chair: Senator Jaffer on a point of order.
Senator Jaffer: If I am not mistaken, when we started this morning, you made a ruling that this meeting was for clause-by-clause consideration and we were not allowed to examine the witnesses. This issue is something completely different. We need to call the minister on it. We need to ask questions. We need to think about this, and maybe hear from the Canadian bar. This topic is completely new and we have had no time to think about it. You made a ruling this morning.
The Chair: To clarify, Senator Jaffer, what was said was that we would not debate issues where amendments had not been proposed, nor would we interrogate witnesses on points where amendments had not been proposed. This item is an amendment. I think the question you raise is not so much a point of order as a question for debate at this stage. I have questions myself about this amendment, but I will wait until committee members have discussed what is before us and have put questions to the officials who are before us. Then we will decide what to do. Does that answer your question?
Senator Jaffer: I apologize. I only looked at it while you were speaking, so maybe you said it and I did not understand it. Why can we not wait until we receive Bill C-2 to look at this item? Why do we need to do this now and make the same kind of amendments on Bill C-2? The same thing could be done on Bill C-2. I do not understand at this late moment why you want it done here and now.
Mr. Pruden: It is not unusual when two bills proceed at the same time that touch on a section in the Criminal Code but perhaps in different ways to ensure there is coordination between the two bills and to give the three situations that Ms. Desaulniers has explained. If one bill passes before the other bill, then one wording is needed, but if they both pass and are proclaimed at the same time, then another wording will be needed. If the other bill passes and is proclaimed first, then a third type of wording will be needed. In this motion, the legislative drafters have given the scenarios and language that will be needed to ensure that the Criminal Code does not end up self-contradictory.
The Chair: I want to drill a little deeper on this one myself, but first let us hear from senators.
Senator Jaffer: You assume this bill will pass first.
Mr. Pruden: No, I am saying the amendment sets out three scenarios that depend on which bill is passed and proclaimed first: If passed, here is the language needed to cover that scenario. We often refer to these types as coordinating amendments. They are contained in a bill because another bill happens to touch on the same section of the Criminal Code for a different reason, and we do not want to end up in the situation where the numbering is a mess and it is impossible for anyone to figure out wording that is contradictory. These coordinating amendments will help us avoid the situation where the wording will be totally askew because one bill was proclaimed before the other bill and did not take into account the wording that was in the other bill.
The Chair: Honourable senators, for the sake of clarity, this amendment falls into three parts. The first part is covered in what is labelled subsection (2). I want you to correct me if I am wrong. Subsection (2) says that if Bill C-2 comes into force before the bill that is now before us comes into force, the bill that is now before us will automatically be amended as follows. Subsection (3) says that if this bill comes into force before Bill C-2 comes into force, Bill C-2 is amended as follows. The final passage, which is labelled subsection (4), says that if they both come into force on the same day, then Bill C-2 is deemed to have come into force before Bill C-13.
In my not vast experience in the Senate, I have seen in the past parallels to subsection (2) and possibly even to subsection (4).
Subsection (3), however, is newer to me, and senators may wish to address that question. The element that has caught my eye particularly, and on which I have attempted to check with the authorities, involves having this committee adopt an amendment to a bill that is now before the Senate and has not received second reading. I am not passing any comment here on the content of the amendments. However, as your committee chair, I thought it would be appropriate for us to explore the procedural quality, shall we say, of these proposals. There is also, of course, the matter of the substantive content of the amendments, but that will be for senators to discuss.
Is there further discussion?
Senator Joyal: I can understand that, for the sake of concordance between bills, we need to manage a way to determine date of implementation, depending on what bill is passed first. I accept that idea and I have seen that approach before and we have voted on it in this committee. I am looking at Senator Andreychuk, who is a long-standing member of that committee.
Where I have a problem is that we are amending a bill that is at second reading in the Senate, which has not come to this committee, at this point. We expect it will come to the committee not too far down the road. If we are to study Bill C-2 and the provisions where section 255(2) and paragraph (3.2)(1) apply, we will study that at that time. However, now we are asked to amend a bill, the subject of which we have not yet started to debate, and we might want to amend that very section 255(2) for other purposes in terms of minimum sentences and so forth.
It seems to me to put the cart before the horse, if I can use a common expression. On the concordance of some bills, I might accept that it is the case, but not in substantial amendments to a bill that is already before us. I do not see the purpose, unless there is a political purpose, where the government has stated that they do not want an amendment to Bill C-2, but they realize that something should be done to it, and we will do that in this amendment and we will not need to amend Bill C-2.
We are amending, through Bill C-13, a bill which exists as Bill C-2, and we will, in fact, send only one bill back to the House of Commons. It will be Bill C-13 and not Bill C-2, because in the context we have not amended Bill C-2. It seems to me that there is a trick there that we need to understand if we are voting for it.
[Translation]
Ms. Desaulniers: The second situation, which refers to section 45, paragraphs 2 and 3, is based on something that is known and something that is unknown. And what will be known is when clause 7 of Bill C-13 comes into force.
This will not happen today. You are not expected to amend Bill C-2 today, but we are planning ahead for something that could happen in the future, if clause 7 of Bill C-13 comes into force first. Assuming that Bill C-13 comes into force first, including clause 7, then the text of clause 7 will be found in the Criminal Code.
As you said, another bill deals with the same provisions and must reflect the fact that Bill C-13 will have amended these provisions. As was mentioned earlier, there cannot be two subsections 255(3.1).
In the future, if clause 7 takes effect in Bill C-13, Bill C-2, which will not yet be in force so can still be changed, will have to be examined, and this is why clause 3 of the motion before us is organized in the following way. It is known that the text of a clause coming into force will appear in the Criminal Code, and the clause that has not yet come into force can still be changed, and that is the one that will be amended.
Senator Joyal: I respect your argument, but that does not address the fact that this is a considerable addition to a bill, which is not yet before this committee, and we do not know that once we have heard the relevant witnesses we will not decide to amend this provision in the clause you are asking us to amend today.
I think there is a way to pre-empt the decisions of this committee that seem to be unfounded based on the part of the amendment you are presenting today. I do agree with the issues of coordination, but I disagree with the issues of substance.
[English]
Senator Baker: I agree with the chair's observation and that of Senator Joyal. The way this amendment is worded, it says if something happens, if something receives Royal Assent, and then if a subsection of another act comes into force at a certain day, and if another section comes into force at a certain day.
The problem is, of course, this amendment deals with sections 253 and 254 of the Criminal Code. Sections 253 and 254 of the Criminal Code are not dealt with in this particular bill, so the problem with the logic is if sections 253 and 254, as proposed in the bill yet to come before this committee, are not approved by the Senate — and that is a possibility. This is new legislation you are referencing here. It deals with drug-impaired driving and with offences at roadside that are not presently part of the Criminal Code.
You suggest in this amendment that this will all go through, because if it does not go through, then your numbers will be off.
That is not my argument against this amendment. I am not averse to dealing with it. However, given the fact we are dealing with sections 253 and 254, in substance, in the next bill, because that is what the whole section on drug-impaired driving is all about, and the only reference in this bill is to section 259, which is a completely different subject altogether until that section of the code, I would prefer to deal with these matters when the next bill comes along and not at this point.
[Translation]
Ms. Desaulniers: Clause 7 of Bill C-13 has to do with section 255, which addresses penalties for impaired driving offences. The motion before you also has to do with amendments to section 255 only.
The link between Bill C-13 and the motion before you is that they both have to do with section 255. Senator Baker is right in saying that sections 253 and 254 are addressed in Bill C-2, but this motion has to do with section 255 only, and Bill C-13 affects only section 255.
[English]
Senator Milne: My problem is much the same as Senator Joyal's and Senator Baker's. Senator Joyal said it far better than I can, but I have grave concerns about passing substantive amendments to an act that I have not yet seen in this committee. I do not think I can do that, because I do not know what this amendment amends. I do not what is in the original act. I have not studied it yet. I do not know what the effects of these amendments will be, and I cannot support them.
Senator Bryden: As I understand it, the reason you are wording the amendment this way is so there will be no confusion as to two or three different things happening at the same time. Can that be done just as easily when the next bill comes up in its normal course and put your concerns there, if and when there is a coming-into-force or a Royal Assent? Can it be done in the next bill? Is that what you are concerned about?
[Translation]
Ms. Desaulniers: No. I just wanted to say that Bill C-2 will not be amended today. It could hypothetically be amended in the future. So today, you are not amending Bill C-2. You recognize that there are two bills that are almost parallel, that deal with the same situation, and that one day, there needs to be some coordination between them.
[English]
Senator Joyal: It seems to me that we will deal with Bill C-2 in the near future, because the bill is already at second reading. It will then move to our chamber. When it is referred to this committee, we will make the substantive amendment and coordination that will be needed, as much as we will have seen fit to accept Bill C-2 as it is, or we will make additional amendments that might pertain to this section. We might need to amend this section if we amend the section in the bill as it is now.
We should respect the logical debate and study that we normally follow for the bill. There is no need to proceed with this amendment at this point in time, in my humble opinion, except to prevent additional amendments to Bill C-2 that have not been already discussed and debated in the Senate.
The Chair: Honourable senators, this question is a procedural one, but an important one. Such authorities as I have been able to consult, and the discussion around this table, confirm that the question is an important one and that arguments are to be made on both sides.
It is unusual, to say the least, to propose an amendment in a committee studying one bill of another bill that is now before the Senate on the Orders of the Day but has not received second reading. That is, the other bill has not received approval in principle, let alone been referred to a committee. It is never wise to take for granted even that this committee would even receive the bill. We can hypothesize this committee will receive the bill, but you never know.
Senator Baker: That is a good point.
The Chair: There is an old rule in Westminster whose application in Canada is unclear, the authorities tell me. It is called the rule of anticipation. It says that we should not anticipate in one proceeding something that is on the Orders of the Day in a more effective, superior form in another proceeding. Bills are taken to be more effective and rank ahead of amendments. On the other hand, the officials have made an interesting case that this question must be tackled; we cannot have two versions of the same clause out there floating around.
It seems to me now we have only two options. One is to vote this amendment up or down, as is. The other is — and this option depends on the wish of the government side that has proposed this amendment — perhaps to move a subamendment, taking out for the time being proposed subsection (3) of the bill. That could, of course, then be moved at third reading.
This issue is substantive. I would like the full Senate to have a chance to think about it. However, I am not recommending this course of action; I offer it to you as one of the possibilities.
On that basis, I turn to the government side to ask how you wish to proceed with your amendment at this point, colleagues.
Ms. Desaulniers: Can I please have a minute to consult with my colleagues?
The Chair: I think we can agree to that.
Senator Joyal: Yes, of course.
The Chair: Indeed, while you are consulting, we can suspend for a couple of minutes. We shall reconvene in five minutes. Will that do it?
Ms. Desaulniers: Yes. Thank you.
The Chair: Honourable senators, we will continue our discussion of the proposed new clause 45.2. Is there any further discussion? Does anyone wish to make any motions at this time?
Senator Joyal: Question!
Senator Bryden: Question!
Senator Andreychuk: I thought he moved the motion.
The Chair: He moved the motion on this amendment and there had been some discussion of a subamendment.
Honourable senators, is it your pleasure to adopt the amendment?
Some Hon. Senators: No.
The Chair: All in favour?
Senator Di Nino: Of the amendment, yes.
The Chair: Wait a second. Are you moving a subamendment?
Senator Di Nino: I am moving a subamendment. Senator Oliver?
The Chair: What is the subamendment?
Senator Oliver: The subamendment is that Bill C-13 be amended by adding after line 16 on page 20 the following, starting with clause 45.2 down to the middle of the page where it says (3) and after (3), omitting and deleting everything down to subclause (4) that states "If subsection 21(3) . . ."
In other words, it deletes all of subclause (3).
The Chair: We do not have that in written form, but Senator Oliver moves that his amendment be amended by deleting subclause (3); for greater certainty, from the words "If section 7 of this Act comes into force. . ." to the words ". . . minimum punishment described in paragraph (1)(a)."
Is that correct, Senator Oliver?
Senator Oliver: Yes, the existing subclause (4) needs to be renumbered to become subclause (3).
The Chair: Is there discussion on this subamendment, colleagues?
Senator Bryden, did you have your hand up?
Senator Bryden: No.
The Chair: I will call the question. Those in favour?
Some Hon. Senators: Agreed.
The Chair: Those opposed?
Senator Bryden: Those opposed to the amendment?
The Chair: To the subamendment: We are voting now on the subamendment, Senator Bryden, which has just been proposed, which is the deletion of subclause (3).
Senator Joyal: We are on the subamendment and not on the amendment.
Senator Bryden: I do not want it at all.
The Chair: You can vote against anything you wish, Senator Bryden.
Senator Joyal: When the vote comes on the amendment, you can then vote the way you want to vote. We are now on the subamendment.
Senator Milne: We are deleting subclause (3).
Senator Bryden: So we will play games with this.
The Chair: No, a subamendment is before us. We are halfway through the vote. Shall I suspend the vote for discussion?
Some Hon. Senators: No.
Some Hon. Senators: Question!
The Chair: Let me repeat then: Those in favour of the subamendment?
Some Hon. Senators: Agreed.
The Chair: Those opposed to the subamendment?
Some Hon. Senators: No.
The Chair: Abstentions?
I think the subamendment has carried, on division.
This brings us to the main amendment as proposed and as amended.
Will all those in favour of the main amendment please signify?
Some Hon. Senators: Agreed.
The Chair: Those opposed?
Some Hon. Senators: No.
The Chair: Abstentions?
Senator Watt: I abstain.
The Chair: In my opinion, the "nays" have it. We can have a roll call, if senators wish to have a role call.
Hon. Senators: Agreed.
Adam Thompson, Clerk of the Committee: Senator Andreychuk.
Senator Andreychuk: In favour of the amendment.
Mr. Thompson: Senator Baker.
Senator Baker: No.
Mr. Thompson: Senator Bryden.
Senator Bryden: No.
Mr. Thompson: Senator Chaput.
Senator Chaput: Yes.
Mr. Thompson: Senator Di Nino.
Senator Di Nino: Yes.
Mr. Thompson: Senator Jaffer.
Senator Jaffer: No.
Mr. Thompson: Senator Joyal.
Senator Joyal: No.
Mr. Thompson: Senator Milne.
Senator Milne: Yes.
Mr. Thompson: Senator Oliver.
Senator Oliver: Yes.
Mr. Thompson: Senator Watt.
Senator Watt: Abstention.
Mr. Thompson: Senator Fraser?
The Chair: Abstention.
Mr. Thompson: Yeas, 5; nays, 4; abstentions, 2.
The Chair: The amendment, as amended, is carried.
Senator Di Nino: So it is not a surprise, we also agreed that we will revisit that portion that was deleted at third reading in the Senate.
The Chair: We have also before us, honourable senators, the text of an amendment to clause 46.
Senator Joyal: It is a consequential amendment for renumbering, namely:
That Bill C-13 be amended in clause 46, on page 20, by replacing line 17 with the following:
"46. Sections 7, 8, 18 to 21.2, 29, 35, 37 to 40."
[Translation]
The Chair: Senator Joyal moved that Bill C-13 be amended in clause 46 —
[English]
Shall I dispense?
Hon. Senators: Dispense.
The Chair: Discussion? This amendment is a simple renumbering. Agreed?
Some Hon. Senators: Agreed.
The Chair: Opposed? Abstentions?
Some Hon. Senators: Abstain.
The Chair: Carried.
Shall clause 46, as amended, carry?
Some Hon. Senators: Agreed.
The Chair: Shall the title of this bill carry?
Hon. Senators: Agreed.
The Chair: Is it agreed that this bill be adopted, as amended?
Some Hon. Senators: Agreed.
The Chair: Opposed?
Some Hon. Senators: On division.
Senator Di Nino: On division.
The Chair: On division.
Does the committee wish to consider appending observations to the report? Colleagues, we have a potential text.
Honourable senators, perhaps for discussion of possible observations we should go in camera. I will order that we do so now and the necessary steps will be taken while the clerk distributes the text of possible observations.
The committee continued in camera.