JURI Committee Meeting

STANDING COMMITTEE ON JUSTICE AND LEGAL AFFAIRS

COMITÉ PERMANENT DE LA JUSTICE ET DES QUESTIONS JURIDIQUES

EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, November 18, 1997

• 1108

[English]

The Chair (Ms. Shaughnessy Cohen (Windsor—St. Clair, Lib.)): Order. Today the justice and human rights committee is going to take a look at future business. Yesterday there was a steering committee meeting at which we tried to hammer out the schedule for gun control regulations. Perhaps I will just summarize what we agreed to and what we have to recommend to the committee and see where you are at.

Just a couple of preliminary notes. One is that in the last Parliament I think we lost sight of the fact that groups can submit written briefs. I will bring forward or have somebody bring forward for me a motion that reinforces or confirms our commitment to receiving written briefs as the equal of oral testimony. That kind of motion is something we can circulate and we can use to encourage people who have something to say but whom we may not wish to question or who may not want to travel here, to make sure they are participating in our committee operations. To a certain extent it may allow us to control repetitious briefs without refusing, which we would never want to do, to hear from Canadians.

Having said that, we then took a look at the schedule of witnesses for this bill. We took a cursory look at it and then went ahead and asked the clerk to try to schedule them in, like groups together, and apply it to a particular schedule.

• 1110

The second thing I wanted to say as a preliminary to this is that we should keep mind the fact that the statute gives us 30 sitting days of both houses to review this bill. That means that if the House of Commons or the Senate sits, the last day that we could deal with this would be December 18. But the House is planning to rise on December 12, and as we know, sometimes it rises a little bit early.

So in order to get our report tabled, it's my view, and I think everybody agrees, that we should probably try to be in a position to table it sometime around December 10.

The last report on the first set of regulations resulted in 95% of the recommendations, I think, being accepted by the government, so if we want our recommendations to be taken seriously, we have to meet these deadlines.

As a result, we've initially assigned about 18 hours to these hearings and have agreed on witnesses, but we asked all the parties to give us a list of any extra witnesses they wanted to have here. I understand the Reform Party has done that.

Have you given us the names of your extra witnesses, Mr. Ramsay?

Mr. Jack Ramsay (Crowfoot, Ref.): I just have the two names.

The Chair: Great.

Will the NDP have any other witnesses? No? And the Bloc?

[Translation]

Mr. Michel Bellehumeur (Berthier—Montcalm, BQ): That will come, perhaps. We will be discussing the matter tomorrow, on Wednesday, at our caucus. I have already seen all of the members and asked them to forward names. At first glance, the list already contains the names of some of the witnesses that we wanted to suggest. There is, therefore, no problem.

[English]

The Chair: Okay. So we're expecting to hear by sometime tomorrow from the other parties who may not have responded and we'll try to fit those witnesses in.

The clerk now tells me that we can conduct it on this schedule. We would start on Thursday with government officials, with a doctor who wants to speak to us on public health concerns, and also with the RCMP, I think.

Is that correct, Luc?

The Clerk of the Committee: Yes, on Thursday morning.

The Chair: The RCMP will be speaking to us Thursday morning separately from the other police organizations, because they have some technical things to go over with us, such as assigning numbers to weapons that don't have registration numbers and that sort of thing. It's fairly technical and we need to hear them on their own.

The following week we would start on Monday and go morning and afternoon, and then Tuesday morning and afternoon. Wednesday we would start at 3.30 p.m. but go to 6.30 p.m., which is longer than normal, and then Thursday morning and afternoon again.

In order to fit all of the witnesses in, Mr. Fortin is telling me that we need to add one other session, either an evening session next week or one on Friday morning. So can you just keep that in mind and think about it for a minute? Probably an evening session is better for most people who want to get out of town and get back to their constituencies to do some real work.

I see some nodding.

We do need that extra little session, but that leaves us with the following week. So we can have our researchers working on the report the next week, which is the week that it all ends, and we can be in a position to agree on the report and have it tabled.

That's the proposed schedule. Are there any particular concerns with it?

Can I just have some idea as to whether you prefer Monday evening to Friday morning? You would prefer it? Tuesday evenings are our regional caucuses, so we will do it either Monday or Wednesday evening.

I know this doesn't give you time in your lives for anything else outside of the House and justice committee, but to that I say, “Welcome to the justice committee.” We'll try not to do this too often.

Peter.

Mr. Peter Mancini (Sydney—Victoria, NDP): Will it be Monday or Wednesday?

The Chair: It will be on Monday or Wednesday, and we'll notify you right away.

Mr. Jack Ramsay: Madam Chair, if I could just inquire, Peter MacKay was going to submit the name of a forensic scientist from the RCMP laboratory in Halifax. Did that name come in?

The Chair: That name has not come in yet, but I see Mr. MacKay's assistant here, and I'm sure that as soon as he has that name he would be happy to send it to you, Mr. Ramsay, so you can see it.

Okay, that name is coming to us.

• 1115

Finally, when I talk about these witnesses, what I'm saying to you is that we are going to get our invitations out. Some of them may not want to appear. They will all be given the option of providing us with a written brief. That may cut down on some of this time. So what we are talking about right now is the largest bulk of time we may have to work on this.

An hon. member: Do we have an agreement on this list?

The Chair: We have an agreement. I will just keep talking. If they don't agree, they have a way of telling me.

Budget: I understand you all have a copy of the budget of the committee for the study of the firearms regulations. The total amount is $99,125. I'm seeking a motion to get that on the floor so there can be discussion.

Ms. Eleni Bakopanos (Ahuntsic, Lib.): I so move.

The Chair: Thank you.

Madam Bakopanos moves that the budget of the committee for the study of firearms regulations in the amount of $99,125 be adopted. Just so you know, I can tell you that's a maximum amount, and it's a conservative estimate. We could actually spend less, and we would endeavour to do that, particularly, of course, if we get written submissions.

Is there any discussion on the budget? Jack.

Mr. Jack Ramsay: Is the video scheduled in? Is it definite that there will be one day for videoconferencing?

The Chair: It's only a possibility. All of this is only a possibility. There may be some people who want to videoconference. If they do, we will have the facilities and the budget to do it.

Mr. Jack Ramsay: It says 80 witnesses. I thought we had 50-some witnesses.

The Chair: Again, if people contact us and want to be heard and we can accommodate them, that's the course the committee normally follows to do that.

Mr. Jack Ramsay: Does the $1,200 per witness include travel?

The Chair: It includes everything, and it's inflated.

Paul.

Mr. Paul Forseth (New Westminster—Coquitlam—Burnaby, Ref.): On the overall budget, I'm assuming the estimate has arisen or has been calculated out of past experience— looking at the list of witnesses and the experience of this committee in the past.

The Chair: That's right.

Mr. Paul Forseth: That's where that figure has come from.

The Chair: That's right, and we always try to inflate it so that we won't get caught short.

Is there a consensus to accept that budget?

(Motion agreed to)

The Chair: The next thing is a motion for briefs. That's funnier in English than it is French.

I would invite a motion that written briefs be submitted to the committee—this is what we've talked about—and that they would have equal weight with testimony heard during our deliberations. I mentioned that to you earlier.

Mr. Peter Mancini: I so move.

The Chair: Is there any further discussion?

[Translation]

Mr. Michel Bellehumeur: Madam Chair, we will obviously be supporting this motion providing it does not preclude the motion already adopted by the committee, namely, that briefs be presented in both official languages. When briefs are submitted to the members of the committee, they should be in French and English.

[English]

The Chair: No, this doesn't, and in fact in my view this complements that motion. The brief could not be accepted as tabled unless it were in both official languages.

Is there any other comment on that? Do we have consensus, then, on our written briefs?

(Motion agreed to)

The Chair: On our second report, you have a draft second report which was prepared by Phil Rosen and which I think fairly develops the sentiment we expressed at the end of the so-called Feeney bill the other day.

Mr. Bellehumeur.

[Translation]

Mr. Michel Bellehumeur: I read this report carefully. I don't have too many problems with the observations and the background. However, I read the recommendation at least ten times and I still have problems understanding it. We are suggesting that it be improved. Unless I am mistaken, the Attorney General is informed. Did he intervene? I don't know. We provide for an information mechanism, but I'm wondering whether this is not already done automatically.

• 1120

As an example, in Quebec, in the recent Hydro-Quebec case, it was obvious that the Attorney General had been informed about the case. I don't understand the mechanism that we are suggesting be included again. I'll talk about Bill 101. Obviously, the Quebec attorneys general were informed of the matter. Even in a case of Regina versus an individual charged with impaired driving, where the legality of a Criminal Code section could be challenged, the Attorney General, who is the prosecutor, would automatically be informed even if he decided not to attend or not to appeal.

I don't understand the wording of the recommendations. We are suggesting a mechanism which is paternalistic with respect to provincial attorneys general. I don't think that it is up to us to do this.

If there is a problem with the time period, the recommendation should perhaps be worded to provide for a longer time period in order to correct a situation, as was done in the Feeney decree because of the decision rendered by the Supreme Court of Canada.

The wording of the recommendation is not clear. At the end, we read: "This framework should, as a minimum, deal with the requirement to give official notice—". I have the impression that the provincial or federal Attorney General should be asking the Supreme Court even before it makes its decision, to stay execution. It's as though the attorney were telling the judges that they would have to stay execution regardless of their ruling. It's as though the Attorney General were admitting that he was going to lose the case. Perhaps I didn't understand the context or when it is that the Attorney General has to request the court to stay its execution. The text reads: "—either on application during hearing of the appeal itself or on its own motion, to stay execution of its judgements—". We are asking the Supreme Court judges, before they even render their decision, to stay execution of their judgments.

It's as though the provincial or federal Attorney General were admitting, to the judges, that he knew that they would not rule in his favour and that he would therefore immediately request that they stay execution of their decision. Perhaps I didn't understand very well and I would like some explanations.

[English]

The Chair: Maybe I can assist a little bit. I think that was the initial problem many people had with this whole thing, asking, for instance, how the federal Attorney General could not know that this was about to happen.

The fact is, because of the bifurcated jurisdiction between the federal government and the provincial governments there is a problem, or there can be a problem, of notice to the federal Attorney General. This would not happen in a case where you're dealing with constitutional issues or charter issues, because there are requirements of notice within the charter and the Constitution.

In this case, though, the Feeney decision dealt with matters of common law. As a result, what happened was that in striking down a common law scheme or a statutory scheme within the Criminal Code, there would not necessarily be notice to the federal Attorney General. So you're in a tough position, because you either have to have somebody watching every breath that the Supreme Court of Canada takes and hope that somehow, through that system, the federal Attorney General will get notice of it, or you can require that the parties and/or the Supreme Court of Canada or someone give notice that this section or this common law principle is being considered. That's the first part of it.

The second part of it, and I think the most important part of it, is that when something like this is about to happen or is happening, it may be that the provincial attorneys general, as in the case of Feeney, want the federal government to take a legislative correction with respect to the code, for instance, or the Canada Evidence Act, or some other federal statute. If that's the case, it's more helpful if the federal government has notice of it and knows what's happening so that it can plan its timeframe.

In this case, in the case of Feeney, six months might have been reasonable, save and except for the fact that the House wasn't sitting. It came right out of the blue. So there wasn't a body of study knowledge available within the justice department on this particular topic. I mean, if the court struck down a section of the code in relation to impaired driving tomorrow, there's a working group working on that. But there wasn't a working group working on the Feeney case, so they were really behind the eight ball in terms of preparation.

• 1125

Mr. Lee.

Mr. Derek Lee (Scarborough—Rouge River, Lib.): Thank you.

My take on this is that the Supreme Court was either stupid or disrespectful of the people of Canada and their Parliament when it addressed this issue, made a decision, didn't make arrangements to delay the implementation or suspend the ruling.

The Chair: Mr. Lee, do you want to speak more clearly, maybe not beat around the bush so much.

Some hon. members: Oh, oh!

Mr. Derek Lee: I get paid to speak this way. I'm hoping some clerk across the street over there will read this at some point, because I didn't like being put in that position. None of us around this table like being put in that position with a clock running.

If the honourable justices, the esteemed and most respected justices across the street, are occasionally too stupid to realize the impact of their rulings on the day-to-day life in Canada, on the role that Parliament has, on the role that we have, then I think we have to help them out a little bit by developing some kind of a protocol. If they're too stupid to understand this—and I'm repeating that because we didn't think they were that stupid when we appointed them to the bench—we have to offer them a protocol, some system that is easily identifiable, something the lawyers appearing before the court can make reference to. It will already be pre-developed, they'll know what it is. It will be called the ABC formula, the ABC delay, or whatever it is that will evolve out of our report. It will be very helpful to everybody to remind the forgetful ones across the street in case they do forget once in a while. And it's not even just the ones across the street, it's also in all of the provincial courts of appeal where these decisions are made as well.

The last thing I would say is that if it's not us who propose this, then who will? Some editorialist in a newspaper somewhere? This is our job, colleagues.

In the fourth line of the recommendation, we have referred to development of a legislative framework. I would have thought it would be more of a response framework or a framework for—

An hon. member: A legislative response process.

Mr. Derek Lee: Yes. We're not thinking about making a law that governs this. We're talking about developing a procedural legislative response formula or protocol. I don't think our staff—and if I'm wrong they can correct me—intended that we, by legislative framework, develop a law or a legislated framework. We were simply looking for something that worked and that could be identified.

The Chair: A procedural protocol.

Mr. Derek Lee: A procedural protocol was what I had in mind. I would throw this out there as something I'm not 100% comfortable with.

The Chair: I'll just make a note of that, and we'll keep it in the air for a minute, if you don't mind.

I thought I saw some other hands there. Mr. Mancini, did you have your hand up?

Mr. Peter Mancini: I did.

The Chair: Do you want to admonish the Supreme Court too?

Mr. Peter Mancini: I told you that the other day. They'd admonished me.

The Chair: Now is your chance.

Mr. Peter Mancini: Yes.

I have some concerns with this, and I'll tell you why—although it may be answered as I read through it. My concern is that we're developing here, or we're proposing to develop, a legislative framework. At this point, we're not suggesting who the burden is on at any point to notify the Attorney General. We would leave that entirely to the committee's work, because I would not want to see— Well, I'll leave that until when we develop the legislative framework. That's my only concern.

• 1130

The Chair: Yes, but I think what we're saying, Peter, is that if we adopt this, we're asking the Minister of Justice to instruct her officials to get busy and find a way to ensure that this doesn't happen to us again. We're asking them to do it.

The risk we take if we don't do this is that there'll be a private member's bill or something else, when these things should be consultative with the provinces. I don't think anybody wants to tell the Province of Nova Scotia or the Province of Alberta or Ontario or Quebec, or any other, how to deal with this. We want something the provinces are comfortable with. But they're feeling their necks right now on Feeney. If it doesn't make it through the Senate and the application to extend the time isn't successful, then they're feeling their necks on it, and this is all because the Supreme Court of Canada, while the House was dissolved, disallowed a procedure that we were using in terms of law enforcement.

Mr. Maloney.

Mr. John Maloney (Erie—Lincoln, Lib.): In light of the consultative process, is it a little presumptuous for us to ask someone from the Supreme Court, whether it's a clerk or whoever, to explain how we got to this situation? Is there something we're missing on the other side? It would be beneficial to hear how we got here, what we've missed, and why there wasn't a concern on their part of it. Perhaps there's a larger picture that we have to look at with a view to not having similar situations happen in the future. Even if we establish this, will it be sufficient? Will it be something they would feel more comfortable with? Do we request the Supreme Court of Canada, or a representative thereof, to appear before this committee and chat with us about this situation?

The Chair: We're the Parliament of Canada, so I suppose we can do whatever we want, but I didn't know that we wanted to make this our life's work. I thought we wanted to make it the department's life work. Having said that, you'd always have to ask the question about whether you really want to bring the Supreme Court of Canada here to answer for one of its decision. I want to be as respectful of the court as we would like the court to be of us.

Mr. John Maloney: [Editor's Note: Inaudible] There's been a problem. How do we prevent this from happening again in a way that is satisfactory to everyone?

The Chair: Within the Supreme Court of Canada right now, they have a working group on rules and procedures. It may be that this problem can be resolved there, but as counsel to the government, I think it's up to the department to do that consulting with them. And when we say “consultative process” —I'm sure consultations would be part of it. I'm sure they're not going to propose legislation, as a private member might do, without consulting them.

Mr. MacKay, and then Mr. Ramsay.

Mr. Peter MacKay (Pictou—Antigonish—Guysborough, PC): This is just as a comment, Madam Chair.

To some extent, I think there are already procedures in place. If the attorney general of whatever province or from the federal side, from the justice side, is monitoring the cases that are going through—which they are—I think we're getting into an area here that involves a great deal of soothsaying and of trying to predict what the Supreme Court is going to do. That's my first comment. It's going to be problematic when you have a Supreme Court justice like Mr. Justice Sopinka making a decision like this that is so far-reaching.

Quite frankly, I don't think anybody could have predicted this, and I don't know how it could have procedurally been addressed otherwise, except for having members of the justice bureaucracy to be there monitoring cases on a case-by-case basis. In this particular case involving Mr. Feeney, it would have been in every brief and it would have been available in every argument that the defence was going to be one of exclusion of evidence based on a constitutional infringement. There's no mystery there.

This is a fine proposal and recommendation that we're discussing, but I think there are already safeguards. They just have to be followed up. Those safeguards include more effective monitoring of the case law.

There are going to be times—and you have seen it yourself—when a judge makes a decision that stuns everybody in the courtroom. Sometimes I don't think judges know what they're going to do until the very last minute. This may be one of those cases.

There's just one other point that I'll make. In reading the history of this particular occurrence, I don't see any mention of the amendment that was presented in the House on November 7 in the minutes.

The Chair: This was written before yesterday's discussion, so it will be clarified.

• 1135

Mr. Peter MacKay: Okay. I mentioned it yesterday as well, that's all.

The Chair: But it hasn't been rewritten yet. Until the full committee gave instructions—

If you would like that included, we can make sure it's included in the preamble of the report.

Mr. Peter MacKay: Just for the simple reason that it's part of the history.

The Chair: I agree. That's fine.

Mr. Peter MacKay: Thank you, Madam Chair.

The Chair: Jack.

Mr. Jack Ramsay: Thank you, Madam Chair.

In view of Mr. MacKay's comments, I think we have to look at the recommendation from the viewpoint of whether or not we need it at all, or whether there's already a process in place that can address the problem we faced on Bill C-16. I don't think there is. If there is, then why wasn't it utilized?

I think the question the committee has to address is whether or not there is that problem that has to be addressed, and then whether or not this recommendation addresses it fully and properly. If we're going to look at setting up a new or different structure, I like what Mr. Maloney is saying. I'd like to know what in the world the Supreme Court of Canada expected to happen after this decision came down. What did they expect to happen in this country after they made that decision? Should not the Parliament of Canada have been given a fair opportunity to bring forward corrective legislation allowing adequate and proper time for the due process to take place?

Some might say, well, due process is taking place, and it did take place, at least in this committee, but not without a lot of concern and a lot of misgivings, even though certainly on this side of the table, most of us, if not all, supported the bill.

So what we have to do, I think, is address whether or not we want to go forward into the future, saying, well, there is no need for any change; it's just that someone wasn't on the ball, and we don't really need this recommendation. But I tend to think we do need something.

I think back to the testimony submitted by the Canadian Police Association. They go further. They ask for an amendment to the Supreme Court Act that would allow argument on these very major cases that affect the law, which has been in place for years and years in this country, that the Crown be allowed to make representation to the impact its going to have.

I think we need something. Whether or not this recommendation fits the bill to avoid the kind of thing we faced in this committee is another question.

I myself don't see anything wrong with the recommendation, but I think we have to identify the issue that is being addressed by the recommendation and determine whether or not the recommendation fills the need we've identified. If the need is not there, as Mr. MacKay has suggested—that's how I interpreted what he said—then of course that's a different argument, but I tend to think we do need something different from what we were faced with when the Supreme Court of Canada came down in May on this Feeney decision.

The Chair: Maybe Derek's suggestion actually assists us. If we took out the word “legislative” in the fourth line—

Mr. Jack Ramsay: I kind of like that word.

The Chair: I know. And in the ninth line, then we'd leave it open for there to be a protocol developed that isn't legislative. For instance, within the power that the Supreme Court has to make its own rules, they may want to do it themselves.

Peter.

Mr. Peter Mancini: I think the point Peter is making is one— from somebody who's usually on the outside looking in. I mean, we know the requirement for briefs to be filed the court well in advance of arguments, and even on the way up the ladder to that level. So everybody who was reading the briefs coming in the door, months before the argument, knew this issue was there. The court certainly knew.

The question is, why wasn't anybody alerted in the justice department? I think that's the mechanism we're looking for.

The Chair: If we took out the word “legislative” and just had the word “framework”, Derek, that would satisfy your concerns, and it would allow maximum flexibility. What we could is ask for a report back from the government on this so that we know what's going on. Then, if we don't like it, we can take whatever steps we think we should take, or have more discussion on it.

How does that sound?

• 1140

[Translation]

Mr. Richard Marceau (Charlebourg, BQ): I want to understand this well. Before voting on the recommendation, we will wait to find out the procedure followed by the Department of Justice, and then we will see whether or not such a recommendation is required. Am I right?

[English]

The Chair: No, I'm saying we should table the report removing the word “legislative”, so we're asking the government to consult and to come up with a process and to report back to us.

[Translation]

Mr. Richard Marceau: I do not think that that changes very much.

[English]

The Chair: I think it changes a lot, because it puts the government in a position where members of Parliament are saying please do something to avoid this situation happening again and let us know what you're doing.

[Translation]

Mr. Richard Marceau: But aren't we doing things a bit backwards? Before wording a recommendation, we should be asking ourselves what is being done presently, and then we can determine whether or not a recommendation is required. We're doing things backwards. We would be recommending something and then we would wonder after the fact whether something already exists. Let's ask them what they have and why a situation such as the Feeney situation occurred. As Jack said earlier, we could determine whether there really is a need and, if that's the case, we will meet this need through a recommendation.

[English]

Mr. Derek Lee: In my view there is now no procedure in the system that speaks for Parliament. We're simply outside the loop. In these court hearings and appeals you have attorneys for the applicants or appellants and you have the respondents represented by lawyers, sometimes Justice; it depends on what side they are on. But you have Justice lawyers.

The lawyers from the Department of Justice do not speak for Parliament. Nobody speaks for Parliament. We have no advocate in the system.

Mr. Peter Mancini: They report directly to the Minister of Justice. That's the control.

Mr. Derek Lee: I'm sorry, Mr. Mancini, but I've been around here long enough to know the Minister of Justice does not speak for Parliament. The Minister of Justice speaks for the government and for Parliament. It will become more apparent as the days go on here.

This report is intended to outline that gap in the system, the fact that nobody is out there looking after the needs of the people's Parliament when we are subjected to a broadside, a legitimate broadside, from the courts, who say something is out of sync here. By putting in place some kind of protocol that is easily identifiable, understood, and off the shelf in all of these hearings it's simpler for a lawyer in the Department of Justice, who is not retained to speak for Parliament, to say, hey, one of the other things I have to think about here is the legislative response, and we have to use the 3-D procedure; and I'm recommending to the court, respectfully, that we avail ourselves of this new 3-D procedure to take care of this. The court will say, yes, okay, we'll use the 3-D.

That's what we're aiming at here. We're asking the Justice officials to see, please, in their spare time, what they can develop to help us out.

The Chair: If we adopt this recommendation in this report with the amendment to the bill, then if you instruct me when I report it I'll ask for a response within 150 days. The government is perfectly free to come back and say, look, there is a process that broke down this time; we should have been monitoring the cases and we didn't monitor them properly; we were completely blind-sided, or whatever, and here is what we're doing about it.

Mr. Peter MacKay: Madam Chair, I think we all agree there was a breakdown in the system. I think the key, the emphasis, has to be on the monitoring aspect of it. Whether that's a separate branch of the justice department lawyers looking at or trying to predict these cases or not— but we can't expect the Supreme Court to watchdog itself—

The Chair: I don't think that's what he meant.

Mr. Peter MacKay: —and then let Justice or an attorney general intervene and convince them of something they are going to do. It's simply not going to work.

The Chair: Peter, I don't think that's what anyone is saying.

Mr. Peter MacKay: There's mention in here of the Supreme Court itself on its own motion— so there is mention of it in here. If there's any suggestion that the Supreme Court is going to say, well, we're thinking of striking down a major part of the Criminal Code, so you had better get somebody over here to convince us otherwise, it's not going to wash.

• 1145

The Chair: Jack.

Mr. Jack Ramsay: I don't think the Parliament of Canada should be anticipating responses or decisions arrived at by the Supreme Court of Canada. If that is an accurate premise and a fair one, then there must be a mechanism that will allow for the smooth and continuous administration of justice in this country, and involving Parliament, if we need a bill like Bill C-16, which isn't there now.

With the greatest respect, Mr. MacKay, I don't think the mechanisms within the justice department itself are designed to do that. Mr. Lee pointed that out, that Parliament has to move and had to move quickly in this case, and we didn't have time to do it fully, as far as we're concerned.

We have to allow the Supreme Court of Canada to make their decisions. Fine. But when they make this kind of a decision, there must be some kind of a mechanism that will allow Parliament to respond or react, and there isn't now. If we're going to say, well, it's up to the justice department to anticipate, I don't think that's right. They can anticipate, but they cannot anticipate on the part of Parliament, and I don't think it's right for Parliament to anticipate. Parliament should respond, if needed, when this kind of a decision comes down.

What we're asking for, and I think the recommendation covers it, is an adequate stay of execution on the decision that will allow Parliament to do its job. Parliament had a definite role to play following the decision on the Feeney case. We didn't have sufficient time to do it, and that's what I think this recommendation and the report is addressing.

If I'm wrong and if there are mechanisms within the justice department that will provide Parliament with that means, then show me where it broke down. I don't see where it has broken down; I don't see where anyone lacked diligence in this whole thing—where?—except perhaps in the drafting of the legislation. But, for goodness' sake, when you have to consult ten provinces and other groups on the legislation, is the five-month period of time enough? I don't know. I thought it was, but obviously it wasn't.

Mr. Peter MacKay: But aren't we talking about two separate purposes here? First, is there adequate argument before the court? It seems to me that in this particular instance, in this specific case, there was an issue missed. Why wasn't there a section 1 argument made?

The Chair: It wasn't a constitutional issue, Peter; it was a common law issue.

Mr. Peter MacKay: If they anticipated this fully, or if there was some way to know the direction in which Sopinka was going, a section 1 argument would have at least, I would suggest, set the court back on its heels to say, are we going to exclude evidence in the face of this broader public interest?

So are we going to get governments involved in the initial stages and at least fully make the arguments before the court?

Then we get into the second part of it, which we're discussing here, as to how do we react quickly when it happens. That's where I see the courts perhaps having a mechanism to stay the execution on their own. But if we're asking them to tip their hand and say this is where we may be going so you'd better get in here and argue—

The Chair: All we're looking for here is a way that both the justice department and, more importantly, the Parliament of Canada can have notice that these things are happening. I don't want the Supreme Court to call up all of us and let us know they're going to make a decision. What I want is for our House leadership and our legislative drafters to know what they're going to have to face over the next few months.

We respect the decisions the Supreme Court of Canada is making, but there has to be a mechanism so that we can reasonably deal with responses when we have to legislate. This is not the first time it has happened. It keeps happening, and we're simply asking the minister to make sure that her department has a mechanism in place.

Mr. Peter Mancini: Does the department come back and say that a common law challenge ought to be subject to a section 1, the same as a constitutional challenge, which in fact would solve the problem?

The Chair: All we're saying to the department is, fix this, find some way to fix it and let us know what the fix is. I think the motion fairly does that.

• 1150

Mr. Jack Ramsay: If a section 1 argument is the answer—I don't think it is—and we cannot depend upon the ability or lack of ability of argument before the Supreme Court of Canada to answer the problem that has been created as a result of that decision— I would have liked to have seen a section 1 argument. I don't know if they even touched on that. Certainly there was nothing in the decision that touched on section 1, but that's beside the point. That's the argument that goes forward on each and every case if it's applicable. In fact, they can argue section 1 when it's not applicable and the courts can decide as they see fit.

But that's not the issue I see. The issue I see is that once the Supreme Court of Canada makes this kind of a decision that places a demand upon the Parliament of Canada, there has to be a mechanism that will allow Parliament to act and make sure that the bill we bring forward has been flushed out and examined in the proper procedure of Parliament. It wasn't allowed to occur this way and we want it to occur.

An hon. member: Yes, I agree with that.

Mr. Jack Ramsay: Okay.

The Chair: It's my suggestion that we send this back to the researchers to add that one amendment and that we vote on this at the next sitting of the committee.

Peter wanted to have the history of the bill include the amendment.

Philip, can you do it right now?

Mr. Philip Rosen (Committee Researcher): I've done it in my copy.

The Chair: Go ahead.

Phil has made the amendments that we need, so we'll do it orally and then we can get on with this.

What page?

Mr. Philip Rosen: Madam Chair, on the English version I made note yesterday of Mr. MacKay's comments, and there's another change. I was re-reading the case this morning and there are a couple of small technical changes that have to be made. For example, this was a second-degree murder case, not a first-degree murder case.

The Chair: That would be in the third paragraph at the second line.

Mr. Philip Rosen: It's on page 1.

The Chair: Delete the word “first-degree”.

Mr. Philip Rosen: It would be replaced by the word “second-degree”.

The Chair: “Second-degree” murder case. Okay.

Mr. Philip Rosen: And then on page 2, again working from the English version, Mr. MacKay's comment would come in at the third full paragraph.

An hon. member: What page are you on?

The Chair: Page 2 of the English version, at the third full paragraph which begins, “In September of 1997”.

Mr. Philip Rosen: And if you go down four lines to the sentence that begins, “The committee's report of this bill”, I would add the words “as amended” and the rest would remain the same.

And in the French it would be

[Translation]

"as amended". I will make the required changes in the French text.

[English]

The Chair: We're in the paragraph where it says “the result of this process, Bill C-16 received first reading on October 30, 1997”. Then you go down to—

[Translation]

Mr. Philip Rosen: On the fourth line of the third paragraph of page 2 of the French text, just before the heading "Observations", I would add, after the word "comité": "incluant un amendement au projet de loi" (including an amendment to the bill).

The Chair: Are we talking about the amendment suggested by Mr. MacKay?

[English]

Mr. Philip Rosen: There was one amendment made in committee.

The Chair: Yes. It was a government amendment.

Mr. Philip Rosen: That's what's reflected here, or will be.

An hon. member: The government amendment.

The Chair: Yes.

Mr. Richard Marceau: À la page 2, en anglais, “the committee's report, as amended, of this bill”.

Mr. Philip Rosen: C'est ça, “the committee's report of this bill as amended”.

[Translation]

Consequently, it's the bill that was amended and not the report.

[English]

Then there are the changes in the recommendation pursuant to Mr. Lee's comments and Madam Chair's suggestions, so at line 4 of the recommendation on page 4 we would remove the word “legislative”.

And then at line 9 we would remove the word “legislative”—this framework.

The Chair: So we'd just talk about a framework.

Mr. Philip Rosen: Yes and in French,

[Translation]

in the French text, we would remove the word "legislatif" at two places, on line 4 of the recommendation and a little bit later on.

[English]

The Chair: I think we'll just say “framework.”

Mr. Philip Rosen: Yes.

The Chair: We'll leave it as broad as possible.

[Translation]

Mr. Richard Marceau: The word is used twice in the French version.

Mr. Philip Rosen: At any rate, we will ensure that the English and French texts correspond.

[English]

Those, Madam Chair, would be the amendments as discussed.

• 1155

The Chair: Thank you.

All right, then. Could I have a motion? Mr. Lee moves that we accept this report as the second report of our committee.

Mr. Derek Lee: As amended.

The Chair: As amended. Any further discussion?

(Motion agreed to—See Minutes of Proceedings)

The Chair: Thank you. Mr. Marceau, your opposition is noted.

Could I also have you instruct me to request a response from the government when I table the report? Ms. Eleni Bakopanos so moves. Is there any discussion on that?

(Motion agreed to)

The Chair: Thanks. Oh my, we're just cracking out these reports this term, aren't we?

You have a list of legislation and other items that are before our committee. This kind of comes in with Mr. MacKay's motion, so I'm going to merge the two discussions together, Mr. MacKay.

First of all, just let me go back a second. At steering committee yesterday we discussed what we had in front of us, but we also discussed the work on the victims' bill of rights, which had been started by the committee in the last Parliament. I had indicated to that steering committee that, for what it's worth, this is a personal priority of mine, but I know it is also a priority of other members of the committee in all parties. We also have the reference of the impaired driving material—the review of the impaired driving laws.

Mr. MacKay is moving, in the one motion, that we form subcommittees for each of those two topics. Those are now on the floor for discussion.

Mrs. Finestone.

Mrs. Sheila Finestone (Mount Royal, Lib.): Madam Chair, this is a new committee in a new Parliament. It is my view that issues as large as this that affect the whole population would be best discussed in full committee. We all become spokesmen in our various parts of the country and in our various constituencies, and I think we need to be well informed about all the issues, so that we are comfortable with them. I do not approve of a subcommittee.

The Chair: Mr. MacKay? I'm sorry, I should have let you make your case first, but now you know what you're facing.

Mr. Peter MacKay: I know what I'm up against.

The Chair: I don't think you have any idea with that one, but it's okay.

Mr. Peter MacKay: The reason I'm suggesting, Madame Finestone, that we put this to a subcommittee is that it appears to me, and it's becoming painfully obvious, that this justice committee has a lot on its plate. It's my understanding that if it went to a subcommittee we could perhaps focus on it a little more finely, and could deal with it in a more expeditious way, rather than putting it on the bottom of the list we have before us, which is taking us right through into the new year.

I would suggest that if it went to a subcommittee, we could start this as soon as possible. As to who would comprise the subcommittee—I mean, we're a fairly tight-knit group. Anything that went through the subcommittee, it's my understanding, Madam Chair, would have to be approved by the committee as a whole. It isn't as if there's any cloak-and-dagger work here.

You are correct in saying that these are certainly issues that everybody will want to have input into on a party or a personal level. It's the suggestion that we put it to a subcommittee so that we could focus on it quickly and with sufficient detail. We would then not be in the position that the government was in at the commencement of this session in telling the drunk driving lobby that in four years' time we're still not prepared to do anything legislatively. It's similar with the issue of victims' rights. This is something that has been around for the full session.

To be quite frank, from the comments that were discussed yesterday by the Minister of Justice, there appears to be some reluctance on her part to deal with the issue of passing a victims' bill of rights.

• 1200

The Chair: I won't speak for the minister, but I think quite the opposite is true. The minister is quite committed to doing something.

Mrs. Finestone and then Mr. Discepola.

Mrs. Sheila Finestone: First of all, the drunk driving bill, which I did as part of a committee in 1984-85, certainly was addressed by this House. I can remember it quite clearly.

Secondly, I would like some advice from the chair. Does the fact that it mentions victims' bill of tights on the second page, third line down, indicate the level of importance it's accorded?

One of the issues I wanted to bring to this House of Commons in 1984 was exactly that—victims' rights. It is something that has weighed heavily on my mind and I would be very anxious to see this go forward. It's only now 17 years later and I think it would be very nice if we moved it. I would support an active involvement of the full committee as one of the major priorities of this committee.

I don't know how you determine your priorities, Madam Chair, but I would like your assurance that it will not be the last item on the agenda, just before the Young Offenders Act.

The Chair: No, it's just there because it's there. I think I've already indicated that it is a personal priority for me because of undertakings I made to move this forward in the last Parliament. This committee determines its own priorities, and not me. I'm aggressive and pushy, but I don't have the power to determine the priorities of the committee without all of you.

Mr. Discepola.

Mr. Nick Discepola (Vaudreuil—Soulanges, Lib.): Thank you, Chair. I was going to suggest the same thing.

It seems to me there are two issues here, Peter. One is the priority we give to both initiatives, and the other is that if we don't have enough time in committee we might consider it. But as the chair has indicated, I certainly would favour that we study it in full committee, but on a priority basis so we would all be able to participate. If we're not going to be able to do it at the committee, then I'd have serious reservations. But if we can, and the chair has indicated such, then let's put it as a priority and get it done as soon as possible.

The Chair: Mr. Maloney.

Mr. John Maloney: I would agree. I don't think there's anyone sitting at this table who doesn't agree that both these issues are very important and should be dealt with in an expeditious manner. I would not want to be excluded from a committee looking at either one of them. If it means sitting extra hours, I think this committee should be prepared to do it. I know we have a large agenda, but there is a certain focus we should get to. Let's do it.

The Chair: Did you have something?

Ms. Eleni Bakopanos: On the issue of the Criminal Code changes for drunk driving, I think the minister is on the record as saying this will be discussed at the next federal-provincial ministers conference.

I don't want to repeat what my colleague said. I agree it should be discussed at full committee, but there will be discussion. He did correct Mr. MacKay in saying it is one of the three priorities the minister has in terms of either a victims' bill of rights or some changes to legislation that will deal with victims' rights.

Mr. Peter MacKay: I'm not going to argue the point. I'll just refer to an article in the Ottawa Citizen yesterday: “Justice considers victims' aid office”. The article goes on to say the government seems reluctant to grant its own bill of rights.

The Chair: You can't believe everything you read in the paper.

Mr. Peter Mancini: Can I ask a question here? I don't necessarily disagree with the Minister of Justice if that's her quote. I'm new here, so please correct if I'm wrong, but I get the feeling it's a fait accompli that we are going to create a victims' bill of rights in this committee.

The Chair: I think we need to decide what the federal government can do on behalf of victims of crime. But if you're asking whether we've made the decision to put this in the Criminal Code, the answer is no, we have to discuss it. We haven't made any decisions. If you look at the interim report you'll see that.

Mr. Peter Mancini: That's what I want to hear. Thank you.

The Chair: Mr. Ramsay.

Mr. Jack Ramsay: I think the suggestion that we strike a subcommittee simply underlines the seriousness of the issue. It also challenges the committee as to whether or not it can handle the workload with this included. The last time around we had a heavier workload than we're facing now and there were some things we just didn't get to—particularly private members' bills—as expeditiously as the movers would have wanted or I, as a committee member, would have wanted.

• 1205

If we're saying no to this motion, then we had better be darned well willing to commit the committee to looking at this and to giving it the kind of priority that will ensure that the whole of the committee does have an opportunity to look at this, and not keep sliding it back to the list because urgent things come forward in the Supreme Court of Canada, if it keeps dogging us with the kinds of things we have to move on. We might see this slide to the end, where a subcommittee would be able to focus on it.

I know we all want to participate, but I'd like to be in the House now, and I can't be. We choose, you know; life on the committee and in Parliament is a matter of choices about where you're going to be and where you're going to focus your efforts.

The Chair: I'm going to go to Derek, and then I'm going to go back to Peter, because it's his motion. I'll give him the last word on both of them.

Derek.

Mr. Derek Lee: Mr. MacKay's motion recommends a study and review. The reference we have from the House of Commons on impaired driving asks us to review and draft a bill. Are the two intended to be dovetailed?

Mr. Peter MacKay: Overlapping; by all means.

Mr. Derek Lee: Because I view item 4, the reference from the House asking us to review and draft a bill, as comprehending all of Mr. MacKay's motion on subcommittee.

The Chair: Yes.

Mr. Derek Lee: So we have to do that on a reasonably prioritized basis, because it's a reference from the House. I consider Mr. MacKay's motion done, or subsumed into, the reference from the House. The victims' bill of rights is something additional.

The Chair: The issue he is facing, though, is that he would like it to go to a subcommittee.

Mr. Derek Lee: Procedural.

The Chair: Yes.

All right, Mr. MacKay, give it your best shot.

Mr. Peter MacKay: No further comments, Madam Chair. I just call for the question.

The Chair: Do you want to do this as two separate motions, Peter?

Mr. Peter MacKay: We can do it part and parcel, if you prefer.

The Chair: As one?

Mr. Peter MacKay: Sure.

The Chair: Okay. I'll read the motion by Mr. MacKay:

That, in the opinion of this Standing Committee on Justice and Human Rights, a subcommittee should be created to study and review the provisions of the Criminal Code dealing with drunk driving; and

That, in the opinion of the Standing Committee on Justice and Human Rights, a subcommittee should be formed to study and develop legislation to create a Victims' Bill of Rights that will establish rights for victims of crime in order to give them more information and more involvement in their cases.

(Motion negatived)

The Chair: Nice try. The motion has failed, but that's not to say those issues aren't priorities of the committee.

Finally, in terms of the legislation and other items before the committee, would you give me a chance to work with the clerk and the researchers to set out some kind of schedule for us for the next little while, bring it to the steering committee, and then back here?

Some hon. members: Agreed.

The Chair: Thank you.

We are adjourned.