JURI Committee Meeting

STANDING COMMITTEE ON JUSTICE AND HUMAN RIGHTS

COMITÉ PERMANENT DE LA JUSTICE ET DES DROITS DE LA PERSONNE

EVIDENCE

[Recorded by Electronic Apparatus]

Thursday, May 6, 1999

• 0915

[English]

The Chair (Mr. John Maloney (Erie—Lincoln, Lib.)): Ladies and gentlemen, if we could convene the meeting, we have two bills before us and we want to proceed with clause-by-clause.

Mr. Marceau, do you have a preliminary comment?

[Translation]

Mr. Richard Marceau (Charlesbourg, BQ): Mr. Chairman, thank you for giving me an opportunity to speak.

Yesterday, we again had a problem that has occurred several times. The Minister was here to discuss votes, which was a very important issue, however, at the same time, Bill C-68, which is the new Young Offenders Act, was supposed to be debated in the House.

When my constituents ask me what they could give me for Christmas, I ask for the gift of ubiquity. I have yet to receive it. Mr. Chairman, I would like to know whether you could send a letter to the appropriate House official asking that, when a minister is appearing before a committee, a bill sponsored by this particular minister not be debated in the House at that time. In my opinion, this would be a bare minimum. That is the request that I would like to make, Mr. Chairman.

[English]

The Chair: Mr. MacKay.

Mr. Peter MacKay (Pictou—Antigonish—Guysborough, PC): Mr. Chair, if I could speak to that same issue, I have raised that issue a number of times in the last 18 months. It's even more difficult for members of the New Democratic Party and my own party, the Conservatives, where we have one member of this committee and the subcommittee. This has happened on numerous occasions, and I can inform you and members of this committee that I've also raised it with the House leaders, and yet it has happened time and time again. It doesn't just happen when the minister is here. It has happened on numerous occasions.

I realize that this is a particularly busy committee and it's difficult to accommodate the smaller parties, and to accommodate anyone at times, but surely there must be a way to avoid this kind of blatant conflict, where you have one or two members of a committee who are, as Mr. Marceau has indicated, expected to be in two places at one time. It really is very stressful, because these are very important bills, we're quick to acknowledge. You simply can't be present in the chamber and do your work on behalf of your party and your constituency at this committee in an effective way when that type of scheduling is taking place. So I would lodge my objection as well.

The Chair: Thank you, Mr. MacKay. I appreciate you acknowledging that we are a very busy committee. You appreciate that we set our own agenda, and the Minister of Justice was booked approximately three weeks ago. The House leader of our party sets the agenda in the House as to what bills come forward. I have some sympathy with your comments, and I will direct a letter to our House leader. Perhaps this unfortunate situation won't happen again.

Mr. Peter MacKay: Thank you, Mr. Chair.

The Chair: I'll do the best I can for you, but there are no guarantees.

Mr. McKay.

Mr. John McKay (Scarborough East, Lib.): It's on how we're going to proceed, Mr. Chairman, because the two bills before us have clearly, in some respects, contradictory philosophies. In theory we could end up in a situation where we contradict ourselves. So I'd be interested in your views and the views of the committee as to what's the appropriate procedure. The way it's set out in the order paper here is to do C-284 first and then C-69.

The Chair: I think we have consensus that we're going to proceed with Bill C-69 first, to be followed by Bill C-284. Does that satisfy your concerns?

Mr. John McKay: That will alleviate some concerns.

The Chair: Are there any other comments? If not, we will move into a consideration of Bill C-69. Agreed?

Some hon. members: Agreed.

• 0920

(Clauses 1 to 3 inclusive agreed to)

The Chair: Shall clause 4 carry? Is there discussion on clause 4?

Mr. John McKay: This rush of enthusiasm to embrace this bill escapes me altogether. I want to know, before I agree on what I'm carrying and what I'm not, what parts of 6—

The Chair: We haven't got to clause 6 yet.

Mr. John McKay: I know we haven't got to clause 6, but everything is pivotal on clause 6. Once you decide on clause 6, the rest becomes a bit redundant. So I can't quite see why we're putting the cart before the horse here, Mr. Chairman.

The Chair: We always do clauses chronologically.

Mr. John McKay: I know we always do, but that doesn't make a great deal of sense in certain instances.

The Chair: We're two clauses away from clause 6. I think we'll get into the contentious issues in 30 seconds, if you give us a chance.

(Clauses 4 and 5 agreed to)

(On clause 6)

The Chair: There are amendments. We have Reform amendment number 2. I would point out that Reform amendment number 2 is consequential, and should it be carried, so would Reform amendments 3, 4, and 7. If it fails, Reform amendments 3, 4, and 7 would also fail—amendments 3, 4, and 5. Amendment 5 is there as well.

Mr. Saada.

[Translation]

Mr. Jacques Saada (Brossard—La Prairie, Lib.): I move that the proposed amendment to clause 6.3(1), which deals with the role of the Commissioner, be adopted.

I also move that the amendment pertaining to clause 6.3(2) be adopted as well.

As for clause 6.3(4), I move that both parts of the amendment be adopted. We shouldn't get that mixed up with clause 6.3(5), which deals with ministerial prerogatives.

I am moving that these amendments be agreed to because, in the discussions we had around this table two days ago, we had agreed that this bill contained some undesirable discretionary powers. These discretionary powers, which we wanted clarified, concerned the role of the Commissioner and the police, and not the Solicitor General. Consequently, I move that the amendment to clauses 6.3(1), 6.3(2) and 6.3(4) be adopted.

[English]

The Chair: Mr. Lee.

Mr. Derek Lee (Scarborough—Rouge River, Lib.): The way to proceed here is we have to deal with this clause by clause. We appreciate the direction indicated by the parliamentary secretary, and then as we move through the bill, Mr. Lowther or the parliamentary secretary can move and speak to the appropriate amendments.

So what's next?

The Chair: R-2 is on the table.

Mr. Lowther.

Mr. Eric Lowther (Calgary Centre, Ref.): I think in part Mr. Saada has spoken to this amendment.

• 0925

In some of the previous deliberations of this committee, I think we did have some degree of consensus that the commissioner and, as we'll deal with later, some of the police forces, rather than have a discretionary disclosure of information...once it had been disclosed by the Solicitor General and moved down the ranks to these various other players in the process, the commissioner and the police...rather than it be discretionary with the word “may”, we would change it to the word “shall”; they “shall” make the information available.

That is the substantive change of R-2, and I would hope there would be a continued support around the committee on that amendment.

(Amendment agreed to—[See Minutes of Proceedings])

The Chair: Reform amendment number 3.

Are you going to propose R-3, Mr. Lowther?

Mr. Eric Lowther: Yes, I am. The same—

The Chair: It's consequential. If you're going to propose it, it's automatically carried.

Mr. Eric Lowther: Because it's consequential?

The Chair: Yes.

Mr. Eric Lowther: Well, I would still like to propose it. This is the police force component of “shall”.

(Amendment agreed to—[See Minutes of Proceedings])

The Chair: Reform amendment number 4. It's consequential as well. Do you wish to propose it, Mr. Lowther?

Mr. Eric Lowther: Yes, I do.

(Amendment agreed to—[See Minutes of Proceedings])

The Chair: Reform amendment number 5.

Mr. Eric Lowther: I'm not moving this one, Mr. Chair.

The Chair: So it's withdrawn.

That would take us to Bloc amendment number 1. Mr. Marceau.

[Translation]

Mr. Richard Marceau: Mr. Chairman, I withdraw my amendments.

[English]

The Chair: Thank you.

Reform amendment number 6.

Mr. Eric Lowther: Mr. Chairman, I'd like to proceed with this particular amendment. It goes along with the same intent of some of our earlier discussions, with the recognition that a number of the members, particularly on the government side, were concerned that the minister needed to have the discretion as to whether or not he would disclose the records. Therefore, there was a reluctance to move to the word “shall” from “may”.

In an attempt to find some middle ground, Mr. Chairman, we've put forward an amendment that has a presumptive “shall”, that the minister “shall” disclose to the police, unless...and you can read the amendment there on R-6 unless, and I'm paraphrasing this for expediency, the minister finds some extraneous factors...or examining the factors. We want the minister to actually refer to the factors that have been outlined in the regulations so that he has those guidelines to follow. In that case he could refuse to disclose the information.

It just strengthens the intent of the bill with the presumptive “shall”, and I think it also protects the minister to some degree, in that the legislation gives more direction to the minister of what the intent of the legislation is. It strengthens his position when making these decisions to disclose.

So we think it's good for the minister, good for the legislation, and certainly good for the people who need information.

The Chair: Comments?

[Translation]

Mr. Jacques Saada: Clause 7 of the regulations contains exactly what Mr. Lowther is suggesting with respect to the obligation to consider the regulations. It stipulates:

7. When the Minister authorizes disclosure of the file [..], he must consider the following criteria:

This obligation has already been made under the regulation, in number 7.

Obviously, the approach outlined in the amendment is one where-by the Minister must provide justification when he does not want to make the disclosure. This is a rather veiled way of forcing the Minister into this position, thereby challenging his absolute discretionary power in a more basic way. This is why we have some reservations about this amendment.

• 0930

[English]

The Chair: Mr. Lee, and then Mr. McKay.

Mr. Derek Lee: Mr. Chairman, I'm pleased to see us moving to the statutory obligatory “shall” in areas where we believe it is appropriate. But as I indicated the other day, I don't think we should be moving to impose statutory obligations where it would interfere with or alter a pre-existing, carefully planned, or an existing dynamic of civil or criminal procedure or administrative dynamic that already was in existence and would be at play. This particular amendment reaches in and imposes an optional obligation, if I can put it that way—I think Mr. Lowther has properly described it—on the minister. But it's one that doesn't have to be there for the system to operate effectively, so I wouldn't support it.

The Chair: Thank you, Mr. Lee.

Mr. John McKay.

Mr. John McKay: I am just wondering whether Mr. Lowther knows what “examining the factors” means—“is not appropriate after examining the factors that the Minister must have”.

Have you satisfied yourself with respect to the factors, whatever it is the minister must have? Is there any reason that the minister would have factors other than in this particular set of offences? Are there other factors that must be considered? I'm curious as to what are the factors, and have you examined those factors?

Mr. Eric Lowther: In response, Mr. Chairman, to the member, the factors that are being referred to in the legislation are the factors that have been defined in the regulations. We went through those regulations in a previous committee meeting on this bill, where they were itemized in the regulations. I personally would like to see the regulations a little bit more definitive as to when they would release and when they wouldn't. It's still quite subjective.

The intent of this particular clause is to ensure that the minister is constrained within his decision to hold to the regulations in the consideration of the factors in the regulation. As experience is gained in this, the regulations could be changed without a legislative change. But it gives the minister a guide to follow and I guess in some ways constrains the minister to follow that guide as per the regulations.

So those are the factors being referred to, the ones itemized in the regulations.

Mr. John McKay: My concern would be that you might be defeated by the back door. While being led in the front door, you're being defeated by the back door. In your mind, is there any cause for concern about that?

Mr. Eric Lowther: The intent of this particular amendment is primarily to strength the piece of legislation so that there's a presumptive “shall” on the minister as opposed to a “may”. He clearly has direction from the legislation that when the fellow has signed off to have the record released, there is a pardoned record, there is a confirmation of the offence, and all systems are go. He does not have to have a laborious exercise in trying to determine all the onus on the minister as to whether or not it should be released.

The legislation is saying once all those conditions have been met, it is clear that with the presumptive “shall”, you shall disclose, unless for some reason there are some extraneous factors, as guided by the regulations, that would warrant him to step outside of that. I think this gives a lot clearer direction to the minister, for his benefit, as opposed to a wide open slate, where he has really no guidance in when to release and when not to release.

The Chair: Ms. Carroll.

Ms. Aileen Carroll (Barrie—Simcoe—Bradford, Lib.): I was just going to add to the discussion—hopefully it's an addition—that the criteria have already been set. The process has been moved through. The bars have been met before you come here. It seems to me that at this point you're going over old ground. How much more is there to look at that hasn't already been included in the act and indeed is compulsory to consider?

The Chair: Mr. Lowther.

Mr. Eric Lowther: It's true that bars have been met. The individual has said “Yes, I am willing to have it released. Yes, there is a flagged record. Yes, there is a....” All that has been met. But as the legislation stands, without this amendment the minister still has full latitude to say “No, I'm not going to disclose”, and there is no definition of why he would or would not disclose that information. It's a very subjective test on the part of the minister. I guess in one sense that gives a lot of latitude to the minister, but in another sense it puts him in a very difficult spot. With this approach, we are saying once all those conditions are met, you have the presumptive “shall”—“you shall disclose”—so you don't need to labour over every decision.

• 0935

It also gives him the latitude to say “Gee, this one just doesn't feel good. On the recommendations I'm getting from the department or people up the ladder, this is not a good one to disclose.” He still has that latitude to say “No, I'm not going to disclose this, based on the input I've been given.”

So it just strengthens his position, and I think it strengthens the whole legislation on the same theme that we've had on the commissioner, on the police forces, and on the RCMP. It's not to constrain the minister; in fact, it's to give him some strength of position from which to move and still give him an out if need be.

The Chair: Thank you, Mr. Lowther.

Any further comments? Mr. Saada.

Mr. Jacques Saada: Yes. I do believe that, philosophically, either we recognize the merits of having the Solicitor General have full discretion over the decision or we don't. It's one or the other.

My understanding, Mr. Lowther, was that when, for instance, the amendment you withdrew—I think it was number 5. It gave me the indication that you were in agreement with the principle of the Solicitor General having discretion over the final decision. If we do agree with that, I think I would prefer to maintain the status quo in terms of what he can do rather than impose some new limits, which in fact could be ultimately perceived as limiting his prerogatives as Solicitor General. I don't see how we can achieve both at the same time here, and we have to make a choice between two fundamental philosophies.

The Chair: Any comment, Mr. Lowther?

Mr. Eric Lowther: I just refer to a later amendment to the bill that I think underlines why we need this amendment. It's in clause 8, and I'm reading from proposed (c.1):

(c.1) prescribing that the factors that the Minister must have regard to in considering whether to authorize a disclosure under this Act of a record of a conviction;

So we make reference to the importance of having these factors that need to be considered. We have gone through the regulations and looked at those factors. This amendment, yes, does have the presumptive “shall disclose”, but it also gives the out to the minister and directs him to the factors to be considered if he wants to step away from the disclosure.

So I think I've made my case that this amendment is very consistent with the discussions we've had. It's respectful of the latitude we must give to the minister, but it also gives some direction in the minister being referred to the factors as defined by the department. I think we've covered all the bases.

I submit it respectfully to the committee, and I think I'll leave it at that, Mr. Chair.

(Amendment negatived—[See Minutes of Proceedings])

The Chair: On Reform amendment number 7, are you going to propose that, Mr. Lowther?

Mr. Eric Lowther: Yes, Mr. Chairman.

• 0940

The Chair: Again, that was consequential to Reform amendment 2, so that would carry.

(Amendment agreed to—[See Minutes of Proceedings])

The Chair: We have Bloc amendment number 2. Did you say you were withdrawing that?

Mr. Richard Marceau: Yes.

The Chair: Bloc amendment number 2 has been withdrawn.

Government amendment number 1. Mr. Saada.

Mr. Jacques Saada: It's just a matter of semantics, and it applies only to the English version. In French we don't have this problem. But the word “its”, which was in the original version, is replaced by “the” to fit the constraints of the English language.

(Amendment agreed to)

The Chair: Reform amendment number 8.

Mr. Eric Lowther: I withdraw that.

The Chair: Withdrawn.

(Clause 6 as amended agreed to)

(On clause 7)

The Chair: Moving on to clause 7, as I understand it, Reform amendment number 9 was consequential to Reform amendment number 8, and Reform amendment number 8 has been withdrawn. So you are withdrawing Reform amendment number 9 as well?

Mr. Eric Lowther: Yes.

(Clause 7 agreed to)

(On clause 8)

The Chair: Government amendment number 2.

Mr. Jacques Saada: The first part of the amendment is to give specific authority in terms of the factors, and the second one simply is a problem of number of reference: it should read (6) and not (5). It's just a technicality.

The Chair: Is there any further discussion?

Mr. Eric Lowther: Just a comment, Mr. Chairman. This is what I made reference to earlier. Just for information purposes for the committee, this is prescribing again the factors that the minister must have regard to. This was exactly what our amendment earlier was trying to do in the legislation, directing the minister to have consideration for the factors. I just make that point.

The Chair: Thank you Mr. Lowther.

Mr. John McKay, and then Mr. Derek Lee.

Mr. John McKay: This is directed to the parliamentary secretary. Why do you need it if in fact the minister no longer has to give any real reasons as to why he or she does or does not disclose?

Mr. Jacques Saada: When the minister is going to make his decision there are some important factors that he must take into account. It doesn't mean these are the only things he's going to base himself upon to make a final decision. Actually, we are very close in terms of the wording; we're not close in terms of the approach. There is a list of factors and the minister must take them into account when he makes his decision.

Mr. John McKay: Where does it say that that has to happen? Where does the minister have to avert his or her mind as to whether he or she is going to disclose this particular record or not disclose it?

Mr. Jacques Saada: In number 7 of the regulations—I have the French version in front of me, so I will read it in French.

Mr. John McKay: Number 7 of the regulations?

Mr. Jacques Saada: Yes.

Mr. John McKay: It's not section 7 of the act, but section 7 of the regulations?

Mr. Jacques Saada: The regulations.

Mr. John McKay: We don't have the regulations.

Mr. Jacques Saada: They were given out the other day. I'm sorry if you don't have a copy. It's an oversight somewhere, because it was supposed to be given out.

Is there anybody else who doesn't have the regulations?

Ms. Aileen Carroll: Is there anybody who does?

The Chair: They were circulated, Mr. McKay. Certainly Mr. Lowther was interested in the regulations.

Mr. Jacques Saada: I'm sorry.

I will read the text just to make sure we are all on the same wavelength:

[Translation]

7. When the Minister authorizes disclosure of the file or record of conviction of an individual under the Act, he must consider the following criteria:

• 0945

[English]

The Chair: Mr. McKay, while you are looking at that, can we move on to—

Mr. John McKay: I'm just going back on the issue here.

In the act you prescribe the factors the minister must have with regard to...and then you set the regulations up to describe the actual factors, which ultimately begs the larger question. The day after this act passes, the minister could change the regulations, so in theory at least these regulations could all go by the board.

Mr. Jacques Saada: The regulations can be changed by Parliament, not by unanimous—

Mr. John McKay: By order in council.

Mr. Jacques Saada: Let me put it this way. The essence of the regulations is to help guide the application of the bill. Right? In this case it should be flexible enough to be adjusted according to evolutionary situations.

Mr. John McKay: That's not an argument.

Mr. Jacques Saada: Okay. The argument I'm making is when the minister has to make a decision to disclose or not, he will take these regulations into consideration, or new regulations along with their changes in time, or—

Mr. John McKay: Or he will in theory eliminate.

Mr. Jacques Saada: That's right. That's correct, depending on the need, depending on the advisability, and so on.

The point of the matter is the following. You have regulations that are a guide, and the minister cannot make a decision without regard to these guides.

Mr. John McKay: I don't dispute your good intentions. You're a wonderful human being. Having said that, you haven't persuaded me that the regulations, certainly clause 7, couldn't be eliminated by order in council in a flash, that the minister would then (a) have no guidelines and (b) no requirement to disclose why he or she made this decision in this particular instance.

Mr. Jacques Saada: With all due respect, I felt it was illogical not to want to have regulations there. Regulations are to help. What would be the point of going around them? What would be achieved by eliminating these regulations?

I fail to understand the point you are making, except economically, yes, I can understand what you're saying, but concretely speaking, these regulations are required to help the minister make his decision.

Mr. John McKay: I don't dispute that, but there is no reason why the minister would have to disclose his or her reasoning in any particular instance as you work down the chain, shall we say.

The Chair: Mr. Lee, do you have a comment on this issue?

Mr. Derek Lee: Yes.

The Chair: Would you like to join the discussion?

Mr. Derek Lee: It's just that I hardly know where to jump in.

The section we've just passed that makes the minister the gatekeeper—structurally, the minister is the gatekeeper on the date of the move from CPIC out to the police forces and to the NGO.

The way the statute is structured, the minister has pretty much total discretion. We've worded it as “may”—“may disclose”, “may convey”, or whatever the wording is. We have to remember that the regulations do not govern the statute; the statute dominates.

• 0950

So I see this amendment as a very reasonable attempt by the cabinet, by the governor in council, to take control of the overall control and responsibility for the minister's gatekeeper discretion. The minister will not forever have total discretion over what's happening here. The cabinet, the governor in council, will take ultimate control through the regulations authorized by this particular new section and be in a position to prescribe regulations that delimit the minister's discretion or guide the minister's exercise of discretion in the rather open clause that we've enacted in the statute.

So it's really an umbrella governance or guidance thing, where the governor in council, the government, the cabinet, wants to be in control, ultimately, of the way the system is operating. That's how I see this amendment. It puts accountability for all of it right into the House for the whole cabinet and the government.

Thank you.

Mr. Eric Lowther: I would like to comment on that, Mr. Chairman. I wonder, with what Mr. Lee just said, isn't that one of the best rationales for the earlier amendment we discussed, that the minister shall disclose unless...and he gives consideration to the factors, which are defined in the regulations, which are in control of...?

Mr. Derek Lee: In the absence of your proposed “shall”, with conditions, the drafters of the statute have seen the general wisdom of your perspective, but they have chosen to insert the markers and the guidance and put it into the hands of the governor in council, rather than insisting that the minister continue in control and “shall, subject to”.

So your general view that there should be some control, guidance, etc., and something to make the system work is generally accepted, but I think the government's view is that that should be driven by the government, and the government should stand accountable rather than leaving it all in the micro workings of the statute itself.

The Chair: Mr. Peter MacKay.

Mr. Peter MacKay: Thank you, Mr. Chair. Whether it's the “shall” or the “may”, and keeping in mind what Mr. Lee has said and the factors that are included here that must be taken into consideration, there is still no real accountability on the part of the minister in terms of justifying the decision at the end of the day. There's no necessity in either the regulations or the legislation that says at the end of the day, after the decision has been made, this is why. There's certainly direction that you must consider these factors. As you've said, these signposts must be passed before a decision is made. But when the minister comes to the point where he says “I'm not going to lift this cloud or this coverage for a person with a criminal record”, there's no justification; there's no accountability.

Mr. Derek Lee: Just Question Period.

Mr. Peter MacKay: True enough.

The Chair: Mr. Saada.

[Translation]

Mr. Jacques Saada: Mr. Chairman, these criteria have been used as a guide since 1971, but they have not been provided for in the regulations. This bill calls for regulations. In other words, we are strengthening the value of these criteria by making them subject to public scrutiny. It's stronger than what we've had in the past. And yet, as far as I know, there have never been any problems. Someone will have to confirm this for me, but I do believe that, since 1971, no one, regardless of his or her political party, has ever challenged ministerial decisions in this respect. There have never been any problems and, what's more, we are strengthening the approach by transforming what were guidelines into regulations subject to the legislative process. I think that it is much stronger.

[English]

The Chair: Thank you, Mr. Saada.

I think we've sufficiently discussed this issue. I think it's time for a vote.

(Amendment agreed to—[See Minutes of Proceedings])

(Clause 8 as amended agreed to)

• 0955

(Clause 9 agreed to)

(On clause 10)

The Chair: We have Reform amendment number 10. That amendment seeks to amend the Canadian Human Rights Act, which is not mentioned in this bill. The difficulty is Beauchesne's, if I might refer you to the sixth edition, citation 698, paragraph (8)(a), which says:

(8)(a) An amendment may not amend a statute which is not before the committee.

I think the position that must be taken is that Reform amendment number 10 is out of order.

Mr. Eric Lowther: I have a comment, Mr. Chairman.

The Chair: Certainly, Mr. Lowther.

Mr. Eric Lowther: I respect the decision of the chair and the House, for sure.

The Chair: It's not a decision; it's just a comment.

Mr. Eric Lowther: Okay.

At the same time, as I've expressed a couple of times before this committee, I think there is exposure to the institutions that are hiring people or not hiring people based on the information they receive about a pardoned offence. I think we put them in a very precarious position. If they decide not to hire someone because of the information that this person has a pardoned offence, they could be facing court action based on the decision being made in violation of that pardoned individual's human rights and they could find themselves in court. I understand this doesn't apply in every case.

The Canadian Human Rights Act is primarily applicable to federal-type positions. At the same time, I think there is a liability there. It would be intimidating to some organizations if they were to make their hiring decision, yes or no, based on that information. My intent here was to give them that assurance that they would not be facing some sort of court action if they made the decision on those grounds.

I'd still like to see it go ahead, but I submit to you, Mr. Chairman, and the committee.

The Chair: Ms. Bakopanos.

Ms. Eleni Bakopanos (Ahuntsic, Lib.): I just want to bring to the attention of Mr. Lowther that the minister has announced in the House that there will be a review of the Canadian Human Rights Act. Perhaps that would be the appropriate time, Mr. Lowther, for you to suggest that this issue be raised. It will come to this committee in any case.

The Chair: Mr. Lee.

Mr. Derek Lee: I sympathize with Mr. Lowther's intent here, which is to try to clear the way and provide some assurance that some NGO isn't going to get bogged down in a human rights complaint, federally, provincially, or whatever. But it's worth keeping in mind that at the front end, when the search for record goes in for a job applicant, the search will be an existing record, which is an already existing record and a record that has been buried because of a pardon. As you look into the search for record, you have the same potential allegation of discrimination, whether it's for an existing record that's not buried or a record that is buried. So the search will be for a record. I suppose you're suggesting that a job applicant may say record A is different from record B.

Mr. Eric Lowther: Sure. Once there's a pardon applied, yes, Mr. Lee, I think they have a very strong case. The pardon strikes the record from public access and he has been released from any sort of presumptive decisions based on that information.

Mr. Derek Lee: There may be a charter issue out there in the foggy mists that hasn't crystallized yet, but I don't see discrimination. The question of whether or not a person had ever had or has a record is to me about the same. That doesn't discriminate. You're not discriminating against the person who used to have a record any more than you're discriminating against a person who has a record. I don't see that as discrimination. I couldn't believe that the existence of a record that used to be or a record that is—it's a very fine distinction, and I'm less sensitive to that than you are.

• 1000

Mr. Eric Lowther: I certainly agree with you, it is a fine distinction, and where it will be sorted out is in a courtroom somewhere. So if Scouts Canada, which I believe is federally regulated, decides to say “Gee, we don't want to hire this person because they are a convicted pedophile, albeit pardoned, but we're not going to hire them....”

Mr. Derek Lee: That problem exists now, because organizations do now decide not to hire people because they're convicted pedophiles.

Mr. Eric Lowther: But they're not pardoned pedophiles. You see, the difference is a pardon has been applied. This whole legislation only deals with the pardoned offender. Once they're pardoned, their slate is clean.

Mr. Derek Lee: It doesn't mean they're not a pedophile any more.

Mr. Eric Lowther: Well, that's exactly why we're going through this process, Mr. Lee. My concern is that they can make the case that “I've been pardoned, and now you're discriminating against me on hiring decision.” That's different from someone who has a criminal record that's available for public access on hiring decisions. This is a pardoned individual, and now we have somebody like Scouts Canada dragged into court because they say “We don't want to hire him; he has a pardoned record.” He says “You violated my human rights.” And it won't be you or I who will be deciding; it will be some courtroom somewhere, and Scouts Canada will be paying the bills.

Mr. Derek Lee: With respect, there hasn't been a pardon in the classical sense. The kind of pardon we're talking about under this section is simply the removal of the record. It's not like the Queen has said “You are now forever pardoned for”—

Mr. Eric Lowther: We only have—

The Chair: Mr. Peter MacKay would like to join in the discussion.

Mr. Peter MacKay: I certainly think Mr. Lowther has articulated this quite properly, but there is a very important distinction to be made, and Mr. Lee, I think, has set it out. The pardon itself doesn't erase the fact that a criminal conviction was rendered. It simply places almost an airtight seal around it that says “We can't consider that any more in a hiring practice.” The whole intent of this bill is to lift that because of the threat that might be posed to vulnerable children. That's the bottom line in what we're trying to do here.

I think the parliamentary secretary's suggestion is a good one, that we're going to be revisiting this debate when it comes back in the form of discussions around the Canadian Human Rights Act. I think there's a great deal of merit in what Mr. Lowther is trying to accomplish here, because this bill is going to be given a great deal of scrutiny when it's passed through this place, and through the Senate obviously. This does open up organizations to a legal challenge, because they're saying there is a distinction between a criminal record and a pardoned criminal record, and if you act upon a pardoned criminal record and use that in the criteria for hiring and use that as a justification for not hiring or for getting rid of somebody, you're potentially open to a legal action based on discrimination.

So declaring it as not a limitation and expressing why it isn't a limitation I think is perhaps a good idea. It gives a direct clarification from us as to why we have gone through this entire exercise of C-69.

The Chair: Notwithstanding all of the discussion, I think we're stuck with the fact, notwithstanding the merits of the arguments we've heard this morning, that it's an out of order amendment and that we cannot deal with it. Ms. Bakopanos has mentioned that the Minister of Justice has announced a review of the Canadian Human Rights Act. I'm going to respectfully request her to bring this to the attention of the minister for consideration.

Ms. Eleni Bakopanos: May I suggest that the chair put down on paper Mr. Lowther's suggestion. I think it has merit, and I think there's consensus around the table that this should be part of the review. The review is going to be done way before we even get to the stage of dealing with this at the committee stage. Would you agree?

The Chair: Mr. Clerk, that's probably a good suggestion. Would you please note that?

I think we should move on then with Reform amendment number 10. Well, it's out of order, so we don't even have to worry about it, I'm advised here.

(Clause 10 agreed to)

The Chair: Shall the preamble carry? There is no preamble.

Okay. We have Reform amendment number 1, which suggests that we introduce a preamble, but I think we're back in the same situation as the previous one. Reform amendment number 1 is out of order as well. I refer you to Beauchesne's sixth edition, citation 705, section (3), which states:

(3) Where the bill, as introduced, does not contain a preamble, it is not competent for the committee to introduce one.

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So, unfortunately, it would appear that Reform amendment number 1 is also out of order.

Mr. Ivan Grose.

Mr. Ivan Grose (Oshawa, Lib.): Mr. Chairman, if I might be allowed to make an editorial comment, it's always been my opinion that a pardon was of very little value, and I think we've further devalued it here. Notwithstanding that, I decided not to in any way impede the changes and I will not impede the changes to the act.

Thank you.

The Chair: Reform amendment number 1 is out of order then.

Shall the title carry?

Some hon. members: Agreed.

The Chair: Shall the bill carry?

Some hon. members: Agreed.

The Chair: Shall I report the bill to the House with amendments?

Some hon. members: Agreed.

The Chair: Shall the committee order a reprint for use at report stage?

Some hon. members: Agreed.

The Chair: That concludes our consideration of Bill C-69.

I'd like to move on to clause-by-clause consideration of Bill C-284.

Mr. Lowther.

Mr. Eric Lowther: Mr. Chairman, for the sake of expediency and with respect for the committee and what we've just accomplished with Bill C-69, I would like to submit to the committee a bit of a proposal. Certainly there are aspects, as I've articulated in this committee, that I would like to have seen in Bill C-69, but I also respect that the committee has moved some distance on the “may” versus “shall” issue. I think substantively we have captured the intent of Bill C-284 in Bill C-69.

I guess I would be quite willing to submit to this committee that we report back to the House that the intent of Bill C-284 has been captured in Bill C-69 and that the House proceed with Bill C-69. I guess I would seek one commitment from the parliamentary secretary here today, and that is that Bill C-69 be dealt with before the House rises in June so that this issue is not delayed by dying on the order paper or those types of things.

The Chair: Mr. Saada, do you have a comment? I'm not sure you can govern the House leader's agenda, but I think you could probably recommend very strongly.

Mr. Jacques Saada: I do appreciate very much the confidence of my colleague, but unfortunately this is beyond my control. The only thing I can make a statement about, though, is that I'm prepared to commit to do my utmost to see this happen. But of course I don't have any decision-making power in this regard.

I would also like to take advantage of these two seconds to express my appreciation for the work of the committee on this issue. It was not an easy issue. All parties have really put in their two cents' worth in trying to make it work. I just want to make sure that for the record this appreciation is expressed.

Thank you.

Mr. Eric Lowther: Just as a point of discussion right now, Bill C-69 is scheduled to be on the floor June 15. I've had a number of people say to me “We won't be here June 15”. This whole process would be a tragic waste of time if this bill dies and doesn't come back to the floor.

I would really encourage you, Mr. Parliamentary Secretary, and all members, to do whatever you can to make sure Bill C-69 gets on the floor before we rise. I believe I can speak on behalf of my party that we would be keen to see it proceed through the House as quickly as possible.

The Chair: I would also add, Mr. Lowther, that I will write on behalf of the committee, if that's the committee's wish, to encourage that this matter be dealt with as expeditiously as possible and hopefully before the House rises in June. Is that the committee's wish? It is.

If I understand your motion, Mr. Lowther, you have moved that Bill C-284 be not further proceeded with as the intent of this bill is captured by Bill C-69, an act to amend the Criminal Records Act and to amend another act in consequence. Is that my understanding of your motion?

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Mr. Eric Lowther: It hasn't been the easiest motion I've moved, but that is the most—

The Chair: That's what our report will say.

Mr. Derek Lee: A point of order. I want to just ask the clerk if it's in order for the committee not to report the bill back. I'm just curious about whether or not we should simply not deal with it today. I'm not used to reporting back and saying we're not going to deal with it because we don't think, for whatever reasons we have, we should deal with it.

The Chair: I'd like to call upon the clerk to comment.

The Clerk of the Committee: This motion is in accordance with article 97.1 of the Standing Orders, which gives the standing committee the option of either reporting the bill to the House with or without amendment, or, which is what we're going to be doing, present to the House a report containing a recommendation not to proceed further with the bill and giving the reasons therefor.

Mr. Derek Lee: Thank you.

The Chair: Mr. Lowther.

Mr. Eric Lowther: Is there a vote on this, Mr. Chairman?

The Chair: Yes. As I understand it, it's a report to the House, which will have to be voted upon by the committee.

Mr. Eric Lowther: Maybe I'll reserve my comment until after the vote then.

The Chair: I'll call for a vote then. Is it agreed?

Mr. John McKay: We're a little confused down here as to what it is we're voting on.

The Chair: We're voting on a report to the House, that Bill C-284 be not further proceeded with as the intent of this bill is captured by Bill C-69, an act to amend the Criminal Records Act and to amend another act in consequence.

Mr. John McKay: Mr. Lowther, you're happy with that.

The Chair: Are we agreed on that motion?

(Motion agreed to)

Mr. Eric Lowther: I have just a quick comment, Mr. Chairman.

The Chair: Certainly, Mr. Lowther.

Mr. Eric Lowther: As I said earlier, there are some areas that I would have liked to see strengthened, but generally I think collectively we have moved the yardsticks on this issue further than they were before. I think collectively we have given children's organizations a tool by which they can have a greater assurance that the people they're hiring are safe.

I congratulate all the committee members on their patience with this issue, and to Mr. Saada for working to give full consideration to C-284 and working together on C-69. Let me just say that it feels good.

Thank you.

The Chair: Thank you, Mr. Lowther.

I propose to suspend proceedings for five minutes while we take a little bit of a break, and then we'll move on to consideration of our draft bill on impaired driving.

[Proceedings continue in camera]