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Standing Committee on Justice and Human Rights


NUMBER 096 
l
1st SESSION 
l
42nd PARLIAMENT 

EVIDENCE

Tuesday, May 8, 2018

[Recorded by Electronic Apparatus]

  (1530)  

[English]

    I'm calling this meeting to order.
    Committee members, we're just going to have a brief housekeeping issue before we move to the clause-by-clause on Bill C-375. As everybody knows, we had planned to table in the House on Thursday our report on jurors, and we were going to do our press conference at noon, but in deference to the fact that, unfortunately, there is a funeral some of us are going to—in particular Mr. Nicholson—we're going to delay the press conference and the tabling of the report, if everybody agrees, until we return on Tuesday, May 22. We'll deposit it at 10 o'clock in the House, and then we'll do our press conference. Mr. Rankin has a meeting, so he can only get there for 1:15 p.m. We'll do the press conference at 1:15 p.m. on Tuesday, May 22, if everybody is okay with that.
    We will proceed with our regular meeting on Thursday, because we have witnesses coming from out of town. For that, we will indeed go ahead. The meeting will proceed as scheduled on Thursday, but not the press conference. Is everybody good with that?
    Some hon. members: Agreed.
    The Chair: Today is a very exciting day for this committee, because we have two bills we're doing clause-by-clause for, which is probably a rarity. Perhaps we've even set a record. I don't know. Julie, you might want to research that and put out a press release if we have.
    Can we have a report on that, please?
    Voices: Oh, oh!
    (On clause 1)
    Basically, in Bill C-375, there is only one clause. On clause 1, we have three amendments that were received, two of which are similar, and one is being withdrawn, which is LIB-1.
    There are two we know we are hearing. The first is LIB-2.
     Mr. McKinnon, the floor is yours.
    I'd like to move this amendment to respond to some of the concerns we heard in testimony. Basically, it clarifies the language around mental disorder and so forth, but it also focuses the information on what is relevant for sentencing purposes. I think that is what was needed. I believe everyone has a copy of the amendment, so I won't read it out, but I so move.
    All right. Is there a discussion?
    I'll clarify that there are three basic changes from the original wording of the bill. The first one replaces the term “mental disorder” with “mental condition”; the second makes sure that it has to be relevant for sentencing purposes in order to be included; and the third changes the language from “mental health care programs” to “mental health services or support available to the offender”. Those are essentially the three changes, based on what you heard in testimony.
    Yes, that's what I meant to say.
    I'm just adding.
    Now we'll move on to debate. Does anybody wish to speak to this?
    Mr. Rankin, go ahead.
    I think it's great.
    Okay. Let me then call the question.
    (Amendment agreed to on division [See Minutes of Proceedings])
    The Chair: Now we move to the second amendment, which is NDP-1.
    Mr. Rankin, the floor is yours.

  (1535)  

    Thank you.
    I wasn't here. My colleague Alistair MacGregor was here, but I understand that Dean Embry, from the Canadian Council of Criminal Defence Lawyers, expressed general support but had one concern about privacy in entering the offender's mental health information as an exhibit in court in all circumstances.
    My amendment—and I'll come to the wording of it in a minute—proposes that the pertinent information be given to the judge without unnecessarily committing that information to the public record in every circumstance. Ideally, the mental health information would be provided in a section that's reviewed only by the judge in a part of the report and then factored into the sentencing. That would allow us to preserve the privacy rights of the offender, satisfying the concern. At least the attempt was to satisfy the concern that Mr. Embry suggested. I understand he was supportive of the general bill but had that one very specific concern.
    I worked with the legislative counsel. The drafting of this amendment is taken from the section of the Privacy Act that talks about disclosure of information relating to physical or mental health. The words that are used in the current statute are “without the consent of the individual to whom [the information] relates”. It talks about “duly qualified medical practitioners”, etc. The language about “the best interests of the offender” comes out of that statute. The objective was to try to parallel a statute that has privacy as its foremost concern and use language that is similar in the Criminal Code amendment.
     I understand. That's helpful.
    Mr. Fraser, go ahead.
    Thank you for that, Mr. Rankin. I understand where Mr. MacGregor is coming from in putting this forward, and your intervention is helpful. I agree that the witness did testify to a concern regarding this privacy issue.
    The issue I have with this type of clause in the Criminal Code is, first of all, the term “contrary to the best interests of the offender”. You say that this may be something in the Privacy Act, but I don't know if it's known anywhere in the Criminal Code. I worry that it would add an extra element of difficulty for a judge to know exactly what his or her obligation is in determining what the best interests of the offender are. What is the scope of that? Does the judge have to determine whether it would be in their best interests on anything to do with the sentencing, or with other privacy issues, or related to employment? I just worry that it is not a term that's known elsewhere in the Criminal Code, and it could cause considerable confusion for the bench in applying it.
    As well, the privacy issue as determined means that, if a sentencing judge is going to be using the information from the report in a sentencing decision, that information is obviously going to be indicated, either orally or in writing, in the decision on the sentencing hearing. Therefore, it would become public in any event.
    I get where this is coming from. I understand that there may be a concern there, but I think that this amendment would actually present other problems and unforeseen consequences that we could avoid by not accepting it. That's why I will be voting against the motion.
    Mr. Rankin, if you don't mind, because you didn't have the benefit of being here for Mr. Embry's testimony, I would also like to mention that this type of questioning was given to Mr. Embry. I wish I had the transcript in front of me.
    Essentially, he said that not including it in the document means that it would still be presented in court, but that would be done verbally. It would be more difficult for somebody to go out and find this information because they would somehow have to get a copy of the court transcript, but it would be theoretically possible. I think he said it would just be more difficult. I wish I had the transcript.
    I actually have it.
    Okay, perfect. Go ahead.
    I'll read it, and then maybe I'll try to see if I can meet the concerns that Mr. Fraser raised.
    Mr. MacGregor said:
This is just a quick question. I want to exhaust all my avenues with this bill.
You raised concerns, Mr. Embry, about the pre-sentence report's becoming part of the public record. I don't know whether this is yet possible, but if we could find language to make this section of the pre-sentence report a separate and confidential report to the judge for the judge's eyes only, would that satisfy some of your concerns?
     Mr. Embry said, “Yes, for sure it would.”
    It was a privacy aspect that he was concerned about. If the drafting we got back doesn't meet the concerns, I wonder whether it would be possible to say in proposed subsection 721(3.1), “Information on the matters referred to in paragraph (3)(a.1) shall be filed with the court in a separate document and the court shall examine the document to determine whether the document ought to be disclosed due to the privacy interests of the offender.”
    That gives the judge explicit discretion. It's focused solely on the privacy interests of the offender.
    I think you're going to tell me once again that this particular language isn't found in the Criminal Code. Having said that, if you think there is a concern, if Mr. Embry speaking on behalf of the defence bar flagged something that you agree with, this would be my attempt to meet that concern more specifically through “whether the document ought to be disclosed due to the privacy interests of the offender.”

  (1540)  

    I understand, but right now we're just doing things for the purpose of discussion. We're not actually moving amendments or subamendments. We're talking. When we get to that point, it will be somebody else who will move a subamendment, but right now I think it's just for the purpose of discussion
    Mr. Fraser, go ahead.
    I would ask Mr. Rankin to elaborate on the point Mr. Housefather raised about the fact that this wouldn't necessarily prevent somebody from finding out this information. It's obviously going to be made public during the sentencing hearing; it would just make it more difficult.
    Don't you think that just making it more difficult for somebody to get information they could otherwise get is not necessarily the same as protecting the privacy interests of those individuals?
     It's not a perfect world. However, just to cite an example, if you're in a small courtroom in Annapolis Royal, Nova Scotia and this comes up, the fact that it could be found in some kind of filing in our digital world, or that it could be available in some other fashion everywhere in the world, gives me greater concern than if it is blurted out in a particular courtroom and no journalist is there to hear it.
    It's not perfect, but this bill is a very positive thing, if we are going to look after the privacy interests. The guy will never get a job. He's a schizophrenic, and all of a sudden the world knows that. That's something we ought to guard against. There could be legitimate reasons for not letting the world know. Against a pre-sentence report that says he's a schizophrenic, good luck trying to get a job later.
    I understood that to be the reason why we're trying to fix this section.
    The other thing is, if you do a mental report on somebody, it may have information in there that is actually irrelevant to this. If it were relevant that the individual had some kind of mental problem, and that would factor into the kind of sentence or into whether this person is convicted, yes, I can understand that. It would be in the best interest of this individual to have that public.
    Since this bill requires the pre-sentence mental report, I'd be more concerned that it may have all kinds of material going back to the individual's whole life.
    I'd go along with Mr. Rankin on this one. If these things do become public, it could be prejudicial toward the offenders, and it would be irrelevant to whether they are going to be convicted, or what their sentence would be.
    Just remember that we just amended the bill to say that it has to be related to, or relevant for sentencing purposes. We took out that general—
    I'm worried that the individuals who do these reports are going to think that they have to get it all in, and that it's up to the court to decide whether something is relevant.
    Mr. Rankin, go ahead.
    It could be that an enlightened judge in the future would simply say that there are heath concerns. He or she wouldn't necessarily blurt out, “Oh, by the way, this guy has schizophrenia.” The judge could just say, in open court, that there are health concerns, and the world does not need to see all the documentation later on.
    Mr. Fraser, go ahead.
    They're already doing this, generally speaking. The judges are already determining what issues are relevant, either the circumstances of the offence or the circumstances of the offender. They're taking this stuff into account.
    It's not done now, and there is no issue. I get that we're now requiring them to at least turn their mind to it, but with the restriction that it has to be relevant for sentencing purposes, I'm not sure. We're trying to solve a problem that doesn't exist right now, as far as I can tell. This would cause more problems than it would solve.

  (1545)  

    Are there other interveners?
    The department was invited but unfortunately didn't come. I would be interested to get the perspective of the department on this amendment.
    Mr. Rankin has introduced original language. In order to amend that original language, somebody would need to move an amendment to the amendment, or a subamendment, and it can't be Mr. Rankin. If the language is to change, somebody else needs to move the revision to the language that Mr. Rankin suggested.
    At that point, I'll turn to anybody, and see if Mr. Rankin would like that to happen. Is somebody prepared to do that?
    I'm prepared to do that.
    Mr. Nicholson is moving a subamendment to change the language of the initial paragraph.
    Could you read to us, Mr. Rankin?
    It reads as follows: “(3.1) Information on the matters referred to in paragraph (3)(a.1) shall be filed with the court, and the court shall examine the document and determine whether it ought to be disclosed in light of the privacy interests of the defender.”
     Sorry, we're going to get a copy so we can read it. I got some of it, but not all. I think he's going to write it out right now.
    Oh, my God, you should have been a doctor.
    I have a feeling it's going down because of my handwriting.

  (1555)  

    Could you write out the whole thing in one straight paragraph? I don't think we're going to be able to even pass it like this.
    We'll suspend for a minute.

    


    

    Folks, thank you for your patience, and thank you to Murray for writing it out.
    I'm going to ask now that the clerk read back how the clause would read with the subamendment. I don't know if anybody else can read the handwriting.
    It reads, “(3.1) Information on the matters referred to in paragraph (3)(a.1) shall be filed with the court, and the court shall examine the document and determine whether it ought to be disclosed in light of the privacy interests of the defender.”
    I wonder if we should have a comma after the word “disclosed”.
    I'm just writing it down for tidiness. Yes.
    Basically, the subamendment is deleting the words in lines 5 to 7 of the paragraph and replacing them with “whether it ought to be disclosed in light of the privacy interests of the defender”. We're deleting “whether disclosure of any of the information contained in it would be contrary to the best interests of the offender” and replacing it with the new proposed language.
    That is moved by Mr. Nicholson out of courtesy.
    Is there discussion on the subamendment?
    Mr. Fraser, do you have a comment?
    No.
     We'll have a vote on the subamendment.
    (Subamendment agreed to [See Minutes of Proceedings])
    The subamendment means that Mr. Rankin's original amendment is amended to include the new wording, as opposed to the old wording. To vote on the amendment itself will require a new vote where we would decide whether to add Mr. Rankin's amendment with the subamendment to the bill.
    Basically, that's my understanding of what we're doing right now. We've amended Mr. Rankin's original amendment to now read as revised. Now we would move back to the core of the amendment itself, as revised.
    Is there any further discussion on the amendment as revised? Do you want to offer any comment, Mr. Fraser?
    Sure, if you insist.
    Right now we're talking about the main motion as amended. Is that correct?
    Yes.
    I respect that this is better, but I still feel that there is an issue with regard to how this would be interpreted by the courts and the administration. I think it's solving a problem that I don't think is real, in large respect, because pre-sentence reports deal with this type of information all the time. They're before the courts and there's extraneous information that is then known to the public, which may not form part of the decision of a judge. I think that this information, which is part of a sentencing hearing that is then decided upon by a judge, can't just allude to certain things in the report. Most of the time a sentencing judge has to determine what information is relevant to the sentence that is meted out. That information then forms part of the record that could be the subject of appeal.
    If, in the example that was given earlier, rather than talking about the specifics in the substance of the report, a sentencing judge only refers to a limited type of health issue, that could be problematic. I don't know if it is necessary to make this amendment to the bill. I think the best way to approach it is that we're already seeing these types of pre-sentence reports now disclosing perhaps extraneous information. I believe the amendment we made earlier, making this bill consider only information relevant to the sentencing, narrows it down enough to leave out any kind of concern that this is trying to address.
    For those reasons, I'll be voting against the main motion as it now stands.

  (1600)  

    Mr. Rankin, go ahead.
    I respect that.
    I want to go back to first principles. The summary of the bill that's before us is very simple:
This enactment amends the Criminal Code to require that a presentence report contain information on any mental disorder from which the offender suffers.
    If we're going to say that Bill C-375 is worth passing, the only attempt in my amendment is to simply say that this is a good idea, but we ought to respect the privacy interests of the offender if we're going to go ahead with the requirement about the pre-sentence report. I don't know whether they do or don't, but this bill requires that information about a mental condition now be made available. I'm simply saying that, if we're going to do that, I would like to do what Mr. Embry and the criminal defence people told us to do, which is to respect the privacy of the offender. That was the only purpose of the amendment.
     Thank you.
    Mr. McKinnon, go ahead.
    Thank you.
    I don't believe that it is required to be present categorically. It is required if it is relevant to sentencing. According to Mr. Fraser, if it's relevant for sentencing, it probably needs to be brought out in court when the sentence is brought down.
    I guess I'm in the middle as a non-lawyer here. I don't know which way to go in this, but on balance, I will support Mr. Fraser.
    Mr. Nicholson, did you want to add anything?
    No.
    Thank you, all of you, for sharing your wisdom on this.
    If there is no more discussion on this amendment, we will now be voting on NDP-1 as amended.
    (Amendment as amended negatived on division [See Minutes of Proceedings])
    The Chair: Are there any other amendments proposed to the bill that were not put forward in writing?
    Mr. McKinnon, go ahead.
     Does the summary get adjusted according to the text of the bill?
    I don't think the summary is of relevance.
    Right now, it says “disorder”.
    Where would the summary be in the end?
    Nowhere.
    That's what I'm asking.
    There will be a reprint if the committee adopts it.
    Would the summary still be there?
    Yes, it would be in the reprint, but I'm not sure if it would be corrected.
    It doesn't go in the actual bill, though.
    The summary disappears, essentially.
    At the end of the legislative process....
    At the end of the legislative process, the summary is not there, so we don't have a vote to amend the summary. However, I assume that, as a committee, we could go back to the drafters and ask that the summary be revised to the extent that it's ever used again, in consequence of the amendment changing the words “mental disorder” to “mental condition”.
    I'm not sure we can do it here, but when we reprint the bill with the amendments. I would have to double-check.
    Again, we're not voting on anything; we're simply requesting. We request this because it would be in consequence of an amendment that was already done.
    Yes. I'll pass the word around.
    That's what I was looking for.
    Okay, thank you.
     Does anybody want to make any other amendments? If I don't hear any, we would move to a vote.
    (Clause 1 as amended agreed to on division)
    Shall the title carry?
    Some hon. members: Agreed.
    An hon. member: On division.
    The Chair: Shall the bill as amended carry?
    Some hon. members: Agreed.
    An hon. member: On division.
    The Chair: Shall the chair report the bill as amended to the House?
    Some hon. members: Agreed.
    An hon. member: On division.
    The Chair: Shall the chair order a reprint of the bill as amended for the use of the House at report stage?
    Some hon. members: Agreed.
    An hon. member: On division.
    That's perfect. Thank you, everybody, for your co-operation in moving to that.
    Now we will move to the next part of our meeting. I'll invite Senator Jaffer and MP John Aldag to come forward, unless they want us to suspend. We haven't been going long enough to be exhausted. I think we can keep going. The fortitude that we have, I think, is there.
    In one of those rare moments, we get to consider two bills in one day.
    Pursuant to an act of reference of Wednesday, April 18, 2018, we are now considering Bill S-210, an act to amend An Act to amend the Immigration and Refugee Protection Act, the Civil Marriage Act and the Criminal Code and to make consequential amendments to other acts. It was originally introduced in the Senate and adopted by the Senate, and now sent to the House for our committee to consider.
    We have the Senate sponsor of the bill, Senator Jaffer. Welcome.

  (1605)  

    We also have the House sponsor of the bill, Mr. Aldag. Welcome.
    We will turn it over to you to speak for approximately 10 minutes, and then the committee may or may not have some questions for you, depending on how controversial your remarks are.
    The floor is yours.
     Great, thank you. I'm going to go first.
    I thank the committee for the time to appear before you today to talk about Bill S-210, which I am sponsoring.
    In brief, the legislation is very simple. It repeals from legislation the short title about “barbaric cultural practices”, as was mentioned.
    During the last election campaign, many of the constituents I now represent were quite concerned about this. They were seeing the politics of division in the public discourse. When I got to the House and saw the bill that Senator Jaffer had taken through the Senate, I was very honoured to be able to sponsor it to bring it before the House, because in the House of Commons, in Parliament, the words we use are very important.
    We've seen that hate crimes aimed at particular communities are on the increase, and I feel that words like “barbaric cultural practices” have not helped that narrative. As Canadians, we are about multiculturalism and inclusiveness. I think that the bill, in its very simple form, is removing very divisive words. That is why I brought it to the House. It has now passed second reading and is before the committee for your consideration and whatever comments you'd like to offer.
    Those are my comments, in brief, and why we're here today. I would invite my Senate colleague to speak about some of the other reasons she had for introducing the bill, why she also believes it is very important, and why it has already cleared the Senate.
    Thank you.
    Senator Jaffer, please go ahead.
     I want to start by thanking Mr. Aldag for being the sponsor in the House and for being very supportive of this bill.
    I want to thank Mr. Housefather, the Chair of the Standing Committee on Justice and Human Rights. I also want to thank my friend Mr. Nicholson; we miss you. We haven't worked with you in a while, and now I'm back here working with you. Vice-Chair Murray Rankin has asked me to speak to Bill S-210, an act to amend An Act to amend the Immigration and Refugee Protection Act, the Civil Marriage Act and the Criminal Code and to make consequential amendments to other acts.
    The purpose of this bill is very simple, and the bill contains just one clause. The bill would just repeal the short title, “Zero Tolerance for Barbaric Cultural Practices Act”. That act covers four areas: polygamy, national age of marriage, forced marriage, and provocation. The content of the act and the way the act will be interpreted would remain the same.
    Since the passage of Bill S-7 back in 2014, I have objected to pairing the words “barbaric” and “cultural”. That's not a Canadian value. When we put the two ideas together, we take responsibility for horrific actions away from the person who committed them. It's not a community that commits those acts; it's a person. Instead, we associate the crime with a culture and a community, and we imply that such horrible practices are part of a culture or a community.
    I would like to take this opportunity to quote two witnesses who appeared before the human rights committee to speak to this bill during the last Parliament, to emphasize just how pairing the words “barbaric” and “cultural' marginalizes communities instead of the people guilty of these horrifying acts.
     Professor Sharryn Aiken from Queen's University said:
I am not in a camp of being an apologist for violence—not at all. Let's not make any mistake about that. It's rather the pairing of “barbaric” and “cultural” that is the problem, because it seems to imply that the people who are perpetrating harmful practices and/or the victims of harmful practices are somehow relegated to some select cultural communities. As we know, that is a patent falsehood. We know that family violence, domestic violence, wife assault, and other forms of abuse are endemic across Canadian society.

  (1610)  

[Translation]

    It affects newcomers, long-time residents, indigenous Canadians, and Canadians of many generations. It affects Canadians of all social levels in our country.
    That is the problem with the short title. It suggests that we have to be wary of certain specific communities, rather than focusing on eradicating violence everywhere.

[English]

     Many of you here will know Avvy Yao-Yao Go of the Metro Toronto Chinese and Southeast Asian Legal Clinic. She is a very prominent person in Toronto. She said:
at the end of the day, if we go back to the drawing board, some of the provisions might well be kept, but then you need to change the conversation as a whole because, right now, the conversation is not just about whether the families are engaged in criminal acts but whether they are doing so out of their barbaric culture.
    To give you an idea of the picture that is being painted when certain cultures are called barbaric, I would like to read the definition of the word from the Oxford dictionary: “savagely cruel”, “primitive; unsophisticated”, “uncivilized and uncultured”. That is how we describe cultures when we associate them with barbaric practices. We paint entire groups as cruel and uncivilized. We live in a country that prides itself on its diversity. By calling other cultures barbaric, we are going against the very value that lets Canada stand out among other countries around the world.
    That is not what Canadian parliamentarians do. Rather than marginalizing cultures and cutting them out of Canadian society, we should be sewing our different cultures together and promoting unity.
    During her speech on this bill, Senator Ataullahjan, who is a Conservative senator, said:
We achieve this with the passage of Bill S-7, but we achieve even more if we take steps to better position and, in this instance, to better communicate the intent of our laws, especially when they're of such importance and consequence to new Canadians.
In discussion with members of the community over the past months, many have expressed their support for Bill S-7 and the important issues that it addresses. However, at the same time, they also expressed serious concerns with regard to its short title....
I support ... Senator Jaffer in this regard, and I would urge you to support the removal of the short title of this bill.
    When I was a little girl, I grew up in a colonial English setting, and we were called “barbaric” many times. When I came to this country, I was very much included in the fabric of this country. When this bill came before us and it called it “barbaric cultural practices”, it really was a knife in my heart. I thought I had left that word in the colonial past.
    I come to you today to say that this is not what we are about. Nothing will change; it is just a repeal of the title. It will not go anywhere, because, as you know, being accustomed to all this, there are four bills that have been amended, so they are all separate. However, what it will say to Canadians is that we don't talk that way; our Parliament does not go to that level. That is why I'm asking you today to right a wrong and stop calling a culture “barbaric”.
    Thank you very much.

[Translation]

    Thank you very much.
    We appreciate your presentations a great deal.

[English]

    Normally, we would go through a whole question round, but I'm not sure that we need to in this case, given the relative unanimity.
    Is there anyone who wants to ask a question?
    Ms. Khalid, go ahead.
    It's not really a question, but more of a comment.
     Thank you, MP Aldag and Senator Jaffer, for the great work you're doing in promoting unity and the understanding that language and tone do matter when we're dealing with issues such as this. I really appreciate your hard work on this.

  (1615)  

    Does anyone else have a question?
     On behalf of all the committee members, I want to say that we really appreciate your testimony today. I'll echo, at least for myself, Ms. Khalid's comments that we very much appreciate the unifying voice with which you spoke, not blaming anyone for anything but only talking about how to make things better. We really appreciate it.
    Now perhaps we'll go to the clause-by-clause on the bill. The witnesses are welcome to stay.
    Basically, there is only one clause in the bill, clause 1. We did not receive any amendments to clause 1, but I'll ask the members present if they have any amendments to clause 1 that they want to suggest.
    Is there any debate on clause 1? Not seeing anybody to be recognized on debate, I will call the vote.
    (Clause 1 agreed to)
    The Chair: Shall the title carry?
    Some hon. members: Agreed.
    The Chair: Shall the bill carry?
    Some hon. members: Agreed.
    The Chair: Shall the chair report the bill to the House?
    Some hon. members: Agreed.
    The Chair: Congratulations, Mr. Aldag. Congratulations, Senator Jaffer. You have achieved yet another milestone, and we send the bill back to the House without amendment. Thank you very much.
    Does any member of the committee have anything to add?
    Members of the committee, you're going to be receiving the clean version of the jurors report, which will be deposited in the House on Tuesday, May 22. Just remember that the final version of the report remains confidential until we actually deposit it in the House.
    I appreciate that, everybody. We finished quite early today. Have a wonderful rest of the day. The meeting is adjourned.
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