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CANADA

Standing Committee on Justice and Human Rights


NUMBER 073 
l
1st SESSION 
l
39th PARLIAMENT 

EVIDENCE

Thursday, May 31, 2007

[Recorded by Electronic Apparatus]

  (0920)  

[English]

    We're continuing our clause-by-clause consideration of Bill C-23.
    We had reached and completed clause 23, coincidentally, and we're now moving to clause 24, for which there is an amendment proposed by the government.
    (On clause 24)
    The Vice-Chair (Mr. Derek Lee): I would invite the mover, who appears to be Mr. Moore, to introduce the amendment, and we will consider it.
    I should say that we're joined today in our clause-by-clause consideration by Ms. Desaulniers and Ms. Soublière from the Department of Justice, as well as Mr. Moore, of course. Thank you.
    Mr. Moore.
    Yes, thank you, Mr. Chair.
    I'll move the amendment and Ms. Desaulniers will speak to it.

[Translation]

    The purpose of the amendment is to correct a drafting error. If no amendment is made and the words “or the re-election was made under subsection 565(2)” are not added to the English version, when a preferred indictment is filed and the accused wishes to re-elect, he could force a preliminary hearing. As you know, preferred indictments are filed specifically to avoid a preliminary inquiry under very special circumstances. Therefore, the amendment is required to reflect this reality.

[English]

    Are there any questions on this particular subject? I see none.
    Is there any further debate? Then I will put the amendment.
    (Amendment agreed to [See Minutes of Proceedings])
    (Clause 24 as amended agreed to)
    I go now to new clause 24.1, which is government amendment G-3. It's a new clause proposed by the government.
    Mr. Moore, are you prepared to apprise us of this?
    I should say that staff has had a look at this and there are questions about admissibility. So we'll be listening more carefully to the rationale here.

[Translation]

    Here again, the proposed amendment would correct a drafting oversight with respect to the regime set out under section 568. The drafters neglected to reflect this change in section 569 which pertains to Nunavut's unique situation. Under section 568, an accused may re-elect, when a preferred indictment has been filed. We would like the same situation to apply in Nunavut, but as you know, special procedural rules apply in Nunavut because of its unified court system. Yet, we have not proposed the same changes to section 569. I understand that section 569 is not affected by Bill C-23, but we feel that for the sake of consistency and procedural fairness, this amendment should be adopted.

[English]

    I will just remind members of the rule that governs an amendment that may be outside the scope of the bill. I'll use that term generally.
    It's clear that an amendment that attempts to amend a section of the parent act, i.e., the Criminal Code, that is not already included in the bill would be out of order. I think the witness here, the government, has indicated that there is a connection, not because the non-included section was included in the bill, but because of the procedure involved. There's an analogous procedure amended in one section but not amended in the other section.
    That's right.
    There is a nexus between the two sections. Staff are prima facie of the view that this amendment is out of order because of attempts to amend a section that's not already included in the bill. So I suppose I should listen.
    Monsieur Ménard, on that subject.

[Translation]

    Mr. Chairman, we are well aware that this is a procedural issue and that basically we are dealing with a fairly technical amendment. I agree that we need to be flexible, but I would like this precedent to extend to all subsequent amendments moved. Some of the people who occupied the chair before you—present company excluded because you are known for being flexible— were extremely inflexible when it came to dealing with the opposition.
    Given the technical nature of the amendment, I would be willing to support it, provided it set a precedent in terms of your being open in future to the opposition parties. I therefore ask that you find this amendment in order.

  (0925)  

[English]

    Are there any further comments?
    Ms. Jennings.

[Translation]

    I agree with the legal advice you received from the clerk to the effect that at first glance, the government's proposed amendment is not admissible.However, like Mr. Ménard, we have tried in the past to put forward amendments to a government bill in instances where the link was even stronger than the one explained to us by witnesses speaking on behalf of the government, but the chair of the committee deemed them to be inadmissible, end of story.
    So, I am tempted to be complacent and accept Mr. Ménard's suggestion. However, I would like to hear from Mr. Moore and from each Conservative, or government party member, in order to determine if the explanations provided by Mr. Moore and the government witnesses are reason enough to find the government amendment admissible. I imagine they think it is. Will they remember this in future, when the chair rules other amendments out of order?

[English]

    An hon. member: [Inaudible--Editor]
    Hon. Marlene Jennings: This is serious.
    May I finish, Chair?
    The government is asking us--
    The question here is on whether the amendment is admissible. I appreciate the guidance that Ms. Jennings and Monsieur Ménard have proposed.
     I agree with the advice you've been given, which you expressed to this committee, that this amendment is out of order. However, there was a very tenuous link, which has been made by the government. You, as chair, have said it would appear that, notwithstanding the tenuous link, the amendment is out of order. You said it would appear--
    I have not decided yet.
     You're correct. You have not decided. But you have expressed that, notwithstanding, it would appear.... You're now waiting to hear from members of the committee to help you make a final determination.
    What I am saying is that in my view this amendment is out of order. It is more out of order than amendments we've seen in the past that have been ruled out of order by the chair. However, given that there is a slight tenuous justification and link with the previous amendments and the bill itself, I would be prepared...if I hear members of the committee recognize that the link used as the justification for this being ruled in order is weaker than the links provided for other amendments on other bills.
    Thank you.
    Mr. Comartin.
    I appreciate the sentiment that we have both from Mr. Ménard and, I guess, from the Liberal caucus on the committee, but the reality, Mr. Chair, is that you don't have any choice. This is not in order. Just in this session of Parliament in this committee, we have had a large number of proposed amendments ruled out of order that were much closer to being in order. The rule is very rigid. It's a rule, quite frankly, that I don't support, and it's one we should be looking at in Parliament and in the House to change. But the reality is that we have had consistent rulings by committee chairs that this type of amendment is out of order.
    That being said, the only way we can pass this is by unanimous consent here in this committee. I'm certainly prepared to give that, and I think all members of the committee are, but that doesn't end the problem. When this gets back to the House, it will be caught there by the Speaker's staff, so we're going to need unanimous consent from all parties in the House as well.
    I would propose that you rule it out of order, we overrule you, and then Mr. Moore, I guess, will have to take responsibility for seeing we get unanimous consent in the House. But that's the only way you can do it.

  (0930)  

    Okay. Thank you all for your comments.
    I'm going to save everybody the difficulty. The chair has to make a ruling here, having heard from all quarters. I'm of the view that the proposed amendment is in order, and my reason, which I may not have to give but I'm going to put on the record, is that the first section where we've made an amendment and where the bill makes a change is related to an analogous procedure in the subsequent section. The bill changes the procedure in the first section, and it's been described here that failure to change the procedure in the subsequent section would be regarded as an omission and would present an inconsistency.
    I'm prepared to recognize the connection, the relationship between the two sections and to find that the amendment is in order for that reason, and that it's not outside the scope of the bill—the scope involving the particular procedure involved. I'm going to make that ruling, and if members feel otherwise, the chair can be challenged, but I leave that to you.
    That's my ruling: it's admissible. And I'm prepared to put the question unless something else pops up before I do that.
    Mr. Dykstra.
    Mr. Chair, I understand you made your ruling, but I did want to comment before you added that. We certainly are of the opinion that if it were ruled out of order we would understand, and certainly not object, but obviously you've made a ruling, so I respect that.
    Okay. I'm sorry if I've offended anyone. Let's move on.
    I will simply put new clause 24.1.
    (Amendment agreed to on division [See Minutes of Proceedings])
    (Clause 25 agreed to)
    The Vice-Chair (Mr. Derek Lee): Mr. Petit.

[Translation]

    On a point of order, Mr. Chairman.
    Could we possibly proceed as we did last time around and adopt all of the clauses for which no amendments are being proposed in blocks, for instance, clause 25 to clause 28?
    We could group them together and adopt them as a block. The Bloc wants to make your life easier, Mr. Petit.
    I do not like the sound of that.
    Some hon. members: Oh! Oh!

[English]

    Members have invited us to adopt a number of clauses in blocks, so I'll put them all now.
    (Clauses 26 to 36 inclusive agreed to)
    (On clause 37)

  (0935)  

    There's a government amendment to clause 37.
    Mr. Moore.
    I'll move the amendment and Ms. Desaulniers will speak to it.

[Translation]

    Clause 37 of Bill C-23 seeks to amend the way in which information regarding probation is conveyed to the offender. In the past, pursuant to the existing provision, the court arranged for the accused to obtain certain information whereas pursuant to the new clause 37, the court itself will be required to supply certain information to the accused, while other information will be conveyed to him by, for example, the clerk.
    However, by proposing new wording for section 732.1, our intention was certainly not to modify in any way the information to be supplied to the accused, only the way in which that information is conveyed. Unfortunately, in our new version, we neglected to mention one bit of information, namely the procedure that the offender should follow to obtain changes to his probation order. For that reason, the government amendment proposes to add subsection 732.2(3) which was omitted from the new wording proposed in clause 37.

[English]

    Are we satisfied with the explanation?
    Mr. Comartin.
    We're talking about G-4, right?
    Yes. G-4 for clause 37.
    I see you're removing the last...I see. Okay. Sorry.
    I understand.
    We're okay?
    Seeing no further comment or questions, I'll put the amendment.
    (Amendment agreed to [See Minutes of Proceedings])
    (Clause 37 as amended agreed to)
    (On clause 38)
    The Vice-Chair (Mr. Derek Lee): On clause 38, we have a government amendment.
    Mr. Moore, amendment G-5.
    I'll move it and we'll have the same routine.

[Translation]

    Again, this is a drafting amendment. If you compare the English and French versions, you will see that the word “maximale” does not appear in the French version, when it fact it should. Once again, this amendment corrects a drafting error.

[English]

    Any questions? Comments?
    Seeing none, I'll put the amendment.
    (Amendment agreed to [See Minutes of Proceedings])
    (Clause 38 as amended agreed to)
    (On clause 39)
    The Vice-Chair (Mr. Derek Lee): On clause 39, we have government amendment G-6.
    Mr. Moore.
    I so move.
    Ms. Desaulniers, on clause 39, amendment G-6.

[Translation]

    The purpose of amendment G-6 is the same as that of amendment G-4. Clause 39 seeks to amend the way in which certain information about the procedure to be followed for paying fines is conveyed to the offender. However, there is no attempt on our part to alter the nature of the information being conveyed, only to change the procedure for so doing.When the new clause was drafted, we unfortunately neglected to mention the existing program referred to in section 736 and program eligibility requirements. Again, we are dealing with a drafting oversight and this amendment would correct this technical error.

[English]

    Thank you.
    Are there any questions or comments? Seeing none, I'll put the amendment.
    (Amendment agreed to [See Minutes of Proceedings])
    (Clause 39 as amended agreed to)
    (Clauses 40 to 43 inclusive agreed to)
    (On clause 44)
    The Vice-Chair (Mr. Derek Lee): There are three amendments proposed for clause 44. Let me consult with the clerk.
    Mr. Ménard, on a point of order.

  (0940)  

[Translation]

    Mr. Chairman, as you know, I moved an amendment of a social democratic nature, just as you like them, calling for limits on fines to be increased from $500 to $2,000 and from $2,000 to $10,000. These limits were found to be somewhat high, but I am prepared to go along with my NDP colleague's amendment and with the government's amendment as well, so that a person convicted of an offence punishable on summary conviction is liable to a fine of no more than $5,000.
    Therefore, with the committee's consent, I am prepared to withdraw my amendment. The Bloc Québécois would then throw its support behind the NDP and government amendments.

[English]

    Monsieur Ménard requests unanimous consent to withdraw his amendment.
    Some hon. members: Agreed.
    The Vice-Chair (Mr. Derek Lee:) It's done. It's withdrawn.
    Mr. Comartin, did you wish to speak to the NDP amendment?
    Yes.
    Okay, Mr. Comartin. You can either put the amendment or just raise a point of order.
    No, I'll put the amendment, Mr. Chair.
    Like Monsieur Ménard, when I saw the increase in the fine from what is now $2,000 to $10,000, it certainly jumped out at me that this was excessive. The last time we increased this, I think, was about 20 to 25 years ago—somewhere in that time range. At that time, I believe the fine was $1,000; we increased it at that time from $1,000 to $2,000.
    If you look at the inflation rate or cost of living increase in the period of time since it went to $2,000, it certainly has not increased fivefold. It probably has increased by about 100%. So at most, this really should have gone to just about $4,000. But I think my amendment reflects a realistic approach in moving it to the $5,000 figure.
    The other point I would make in this regard, Mr. Chair, is that any time we're passing legislation, we always have to be careful of imposing more severe penalties on those in society who are at the lower end of the economic scale. A fine of $10,000, even though it's a maximum fine of $10,000, I believe would have that impact.
    Thank you.
    Mr. Comartin, thank you for that. I can see that the NDP amendment is the same amount as the government amendment. It's like duelling banjos, both playing the same song.
    Mr. Moore, are you speaking to the amendment of Mr. Comartin?
    Sure. I will be supporting Mr. Comartin's amendment and, when I get to it, then withdrawing the government amendment.
    There is a request to withdraw.
    I see no further discussion on amendment NDP-2, so I'll put that amendment.
    (Amendment agreed to [See Minutes of Proceedings])
    And then, Mr. Moore, you've requested withdrawal of the government amendment G-7?
    Yes.
    And there is consent. Well, it would actually be out of order or redundant or something. So it's either redundant, out of order, or withdrawn—whatever the clerks wish to call it—and we don't have to put it.
    (Clause 44 as amended agreed to)
    (Clause 45 agreed to)
    We go to new clause 45.1, and we have an issue of admissibility. This is government amendment G-8.

[Translation]

    An earlier clause in Bill C-23 amended section 145 of the Criminal Code. That particular amendment has already been adopted by the committee. However, the text of section 145 is reproduced in Form 12 in clause 45.1. Unfortunately, the wording does not reflect the proposed amendment to a previous provision in Bill C-23. If no changes are made, then section 145 of the Criminal Code would be different from the text reproduced in Form 12.
    Again, this is a technical amendment. I understand that at first glance, this amendment is inadmissible because it has to do with a form not covered by Bill C-23. However, to my mind, there is a very clear link between the bill and the proposed change, in that we only want the new wording of section 145 to be reflected.

  (0945)  

[English]

     All right. It was the prima facie response of the committee clerk that the amendment, as proposed, was inadmissible. Your chair is looking for any reasonable nexus between the amendment and the existing bill that would allow it to be admissible. I'm hoping to hear some more on this.
    I know that the amendment is technical.
    We'll have Monsieur Petit.

[Translation]

    On looking at the proposed amendment, we note that there is the section of the legislation as such and, as is often the case in the Criminal Code, some forms. The fact of the matter is that these forms are established to ensure uniformity across Canada. However, each form must also correspond to a provision in the code. Whether it relates to an appearance notice, a bail order or some other thing, each form must correspond to a provision in the legislation.
    A form is a means of expression. It must not be equated with the substance. We have voted in favour of the substance and therefore, the form, the means of expression, the paper on which the substantive message is conveyed, must correspond. A form is therefore the vehicle for conveying the message, not the message itself.
    Of course, you can say that we did not show it to you. If you come before a judge, I know he will say that the form must correspond to a Criminal Code provision. Otherwise, what purpose does it serve? The form is but an adjunct to the legislative provision, the key component.
    Mr. Chairman, if you can bear with me for another 30 seconds, I want to stress that the form must correspond to the Code's provisions. Moreover, we have already voted in favour of it.
    These are valid arguments that you can use to reverse your position.
    Thank you.

[English]

    Okay, by George, I think he's got it. That's a good enough rationale.
    Mr. Comartin had a comment.
    It's a really good argument from Monsieur Petit. I recognize it. As a lawyer, I think it's very appropriate. But it still breaks the existing rules. So as much as I don't have a problem with your ruling this way, it's wrong, and we need to....
    I suppose it should come from the justice committee. There should be a recommendation coming out of this committee at some point. We should look at this and make a recommendation to the procedure and House affairs committee to change this rule. It is simply too rigid. As much as we come up with these arguments, this is a semantic argument.
    The rule is very clear. If it's not within the scope of the legislation, or if you're going to a section that has not been mentioned in the bill--private member's or government--you can't change it. That's the rule, and it has been rigidly enforced by our Speakers consistently, Mr. Chair. So as much as it's appropriate....
    This is a classic example. We need this amendment. These amendments to the code will not function properly without it. But if you look at the history of the way those rules have been interpreted, we can't do this.
    So again, the point I'm simply trying to make at this stage is go ahead and do it here, and I hope you get it through the House. But the committee, at some point in the near future, I hope, should address this point and make a recommendation to the committee, and I suppose to the House as a whole.
    Thank you.
    I appreciate the sentiment behind Mr. Comartin's remarks. The big issue is how you define and implement “scope”. The implementation of those rules falls to the chair in the House and all the chairs of all the committees that deal with legislation.
    If, in executing and implementing those provisions, a chair is of the view that there is a tangible connection that allows something to come within the scope of the bill, and the chair looks around the table and sees that all the parties support it, and one considers the costs--real, imputed or otherwise--of having to do a one-off, maybe a miscellaneous statutes amendment to the Criminal Code to fix up something that was omitted during passage of a bill, something that was in one way or another connected to the bill, then it gets easier for the chairs to define the scope of the bill as having some edges that aren't quite as hard as you've articulated and that you properly say the chair has been fairly rigid in interpreting.
    I'm just going to guess that from time to time the Speaker in the House appreciates the flexibility of chairs and committees around the House in helping him to give an interpretation of scope of the bill that works for our electors. And in this case I see a connection. I'm going to accept that the reason we have to amend the form is that we've just amended the bill.
    So I'm going to rule it in order. I'm going to put the amendment.
    I thank members for their comments.
    (Amendment agreed to on division [See Minutes of Proceedings])

  (0950)  

    Now we move to government amendment G-9 and new clause 45.2. Do we have a similar issue here?
    Okay, the chair will indicate that the clerk has reasons to advise that this amendment is out of order as being outside the scope of the bill.
    Monsieur Ménard.

[Translation]

    We need more information because otherwise, we will oppose this amendment. I want to understand the government's rationale or reasons for taking this stand.

[English]

    We have to deal with admissibility first, unfortunately, rather than the policy question.
    The chair is, at this point, rather inclined to the advice of the clerk that the amendment is inadmissible because it deals with the Prisons and Reformatories Act, which definitely is not and has not been intended to be amended by this particular legislation.

[Translation]

    The committee has already agreed to an amendment to clause 43 of Bill C-23. Henceforth, when a young offender is serving a youth sentence and is also sentenced as an adult... At present, the method of calculating sentences for adults applies to the full sentence imposed on a young offender under the Youth Criminal Justice Act. We are proposing to amend clause 43 so that adult sentencing provisions would now apply only to the balance of the youth sentence, not to the entire sentence, which makes an important different in the calculation.
    Take, for example, a young offender who receives a 24-month sentence and is then subsequently sentenced as an adult. If adult sentencing measures were applied in all cases, the offender would be eligible for parole after serving two-thirds, or 16 months, of the sentence. So, if the offender has served one year of his sentence, he would have four months left to serve before becoming eligible for parole. However, if only the balance of the sentence is considered in the calculation, two-thirds of the outstanding balance equals eight months. Therefore, instead of becoming eligible for parole in four months, under the amended clause 43, he would be eligible in only eight months. The regime as such clarifies the fact that combining the two sentences does not reduce the sentence handed down to the young offender in any unreasonable way.
    This was an attempt to explain clause 43 to you. Two sentencing regimes apply to young offenders. Clause 43 amends a Criminal Code provision, but we also have subsection 6(7.1) of the Prisons and Reformatories Act which covers situations in which the adult sentencing regime will apply to all sentences. Therefore, this particular provision must also be amended if the Criminal Code amendment is to make any sense.

  (0955)  

[English]

    Is there any further comment on this?
    Monsieur Ménard.

[Translation]

    I am not sure I understand. First of all, I think you should declare the amendment inadmissible. Should you be tempted to rule otherwise, we will not support it. It is not clear to me.
    You are saying that there could be two concurrent parole eligibility regimes. We want assurances that a young person is subject to the provisions of the Young Offenders Act, or is subject to the justice system as amended by Ms. Anne McLellan, namely the youth criminal justice system. So, if we adopt this amendment, the young offender would be eligible for parole sooner.
    Did I understand you correctly?
    This committee...

[English]

    Excuse me, we actually don't need an answer at this time. The issue is admissibility or inadmissibility.
    The chair is going to rule that it's inadmissible. It's outside the scope of the bill. If we're going to change the Prisons and Reformatories Act and other things, we'll have to find another way to do it. So I'm going to rule that if there is no reaction from members to having that ruled inadmissible, then clause 45.2, which is the amendment, fails.
    (Clause 46 agreed to)
    Colleagues, we've completed our work. We just have to do the last of the formalities.
    Shall the title carry?
    Some hon. members: Agreed.
    The Vice-Chair (Mr. Derek Lee): Shall the bill as amended carry?
    Some hon. members: Agreed.
    Some hon. members: On division.
    The Vice-Chair (Mr. Derek Lee): Shall I report the bill as amended to the House?
    Some hon. members: Agreed.
    The Vice-Chair (Mr. Derek Lee): Shall the committee order a reprint of the bill?
    Some hon. members: Agreed.
    The Vice-Chair (Mr. Derek Lee): Colleagues, thank you very much. We've finished our business. I don't see any further business.
    I have a point of order.
    Yes, Mr. Thompson.
    It seems to me that this particular rule that Mr. Comartin has been talking about, not just today but in the past, has come up a number of times in this committee, and he felt from this committee that there should be some effort to resolve that. I'm wondering if that shouldn't be done sooner than later. If so, exactly how will we go about that?
    Mr. Thompson, this is a rule that applies to legislation in the House and at committee. Normally we would seek some guidance from the legislative counsel for the House. Our clerks and counsel here are very good, but it's like trying to nail Jell-O to the wall sometimes. As you will be a fan of this, we try to look for common sense, rule of law, and some efficacy.
    My point is that it seems as though it comes up so much that it ought to be dealt with. It shouldn't be a hindrance to the work we're trying to do on a regular basis, as it seems to be.
    It does take time, I appreciate that, and there's a certain lack of clarity in the application. I hear you. Thank you.
    Ms. Jennings.

  (1000)  

    Given the points that Mr. Comartin, Monsieur Ménard, and I have made on the issue of whether or not certain amendments are admissible because they fall within the scope of the law, or not, and given the fact that there has been a real struggle within this committee on rulings by the chair as to whether or not certain amendments were admissible, and given the rulings that you've just made on a number of government amendments as being either within the scope of the law or clearly outside the scope of the law, and therefore admissible or inadmissible, I think it would be interesting for this committee, and enlightening perhaps, to actually have our experts--maybe even Monsieur Marleau--come and actually explain by what criteria.
    It's not at all clearly explained. I think it might be useful to actually have a mini-course for the members of this committee. And then the committee could decide whether or not it felt that the jurisprudence that's provided in Marleau and Montpetit on the issue of whether it is in the scope or not and how one defines the scope.... If everyone is comfortable, then fine, it's done. If they're not, then this committee might decide that we wish to adopt a motion, to report it to the House suggesting changes to the actual rules, regulations, and procedures of the House.
    Good suggestions and good comment, Ms. Jennings. You may be very pleased to know that this issue came up at the fisheries committee, and a briefing paper on the subject was prepared for the fisheries committee. In this connection there's no difference between fish and criminals. That briefing paper could be made available.
    Members around the table who would like to see this briefing paper on the subject of the scope of the bill, would you indicate so the clerk can get an idea.
    Mr. Comartin. I know Mr. Ménard would love to, and Madam Jennings--it looks like just about the whole committee. Perhaps the clerk could arrange for distribution of that. After that, we can decide whether we want to discuss it further.
     Seeing no further business, we can adjourn. Thank you.
    The meeting is adjourned.