Bill C-2 (39th Parliament, 2nd Session) Committee on Oct. 30th, 2007

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Mr. Chair, on the basis that we don't want to delay this and we've heard from the minister, including even on the one amendment they've made to that part of Bill C-2 that was the old Bill C-27, I'll pass--even though, Mr. Minister, I always enjoy having you here.

Thank you.

[The Chair, Conservative, Rick Dykstra]

Mr. Nicholson.

[Rob Nicholson, Conservative, Niagara Falls, ON]

If I might say, Mr. Comartin, I always enjoy listening to you. Even from the comfort of my own home in Niagara Falls, I did hear your comments with respect to this bill. I've listened to you on a number of occasions. I think your comments are, as usual, helpful, and I appreciate hearing them.

[The Chair, Conservative, Rick Dykstra]

Thank you, Mr. Minister.

Mr. Harris, seven minutes.

[Dick Harris, Conservative, Cariboo—Prince George, BC]

Thank you, Mr. Chair.

Mr. Minister, thank you for coming today.

I want to say that Bill C-2, upon study, is a bold bill. It has substantive changes to the Criminal Code, and I'm sure it will be appreciated by Canadians who have been looking for an extra measure of safety for themselves and their families. The bill does have some very bold moves, and it's tough on violent crime. History will show that in many cases when a bill such as this has come up for legislation, or is even passed through legislation--and it's been decades since anything like this has come along--the constitutional challenge people are just rubbing their hands together, waiting to get at it.

So that Canadians can avoid being disappointed about any hitches that might be in this bill, what assurances can you give us, Minister, that all of the due diligence has been done that will enable Bill C-2 to withstand any possible constitutional challenges?

[Rob Nicholson, Conservative, Niagara Falls, ON]

I appreciate your comments, Mr. Harris, and quite frankly, I appreciate your sitting on this committee. You're not a regular member, I know, of the justice committee, and to you and your colleagues who are prepared to give your time and efforts to get legislation like this through, it is much appreciated.

The drafting of these pieces of legislation undergo considerable scrutiny. It's incumbent upon me, as Minister of Justice, to confirm in my own mind that the bill, first of all, meets the test set out by the Canadian Bill of Rights. That's an obligation that rests on the Minister of Justice for every piece of legislation that is tabled in the House of Commons. In addition, our department is very careful in terms of making sure that legislation, to the extent that we are able to predict these things, will withstand a challenge under the Charter of Rights and Freedoms.

Now, that being said, it is the right of individuals who are charged with offences in this country, or of their solicitors on their behalf, to file applications to have these measures tested. That function has been around in Canada since about 1960, I guess, with the introduction of the Bill of Rights. A number of bills were challenged, and of course since the Charter of Rights and Freedoms we have seen quite a bit of testing. It presents extra challenges to those who draft these, but appropriately so. I remember that in the mid-1980s, when I was a member of Parliament, part of our challenge was to just check on legislation that was already in place--never mind new pieces of legislation, just the legislation that was already on the books. Many--I shouldn't say many, but a fair number--were found to have some constitutional deficiencies. So part of the challenge the justice committee faced was to deal with many pieces of legislation that were updating Canada's laws, to take into consideration that there were these other considerations that had to be met.

Coupled with that was the assurance that whatever we tabled would meet a constitutional challenge. I remember the bill in 1993 to make it a crime to possess child pornography. I'm sure that in my office I had comments, briefs, and articles a foot thick questioning whether this was going to meet a constitutional challenge, and as a member of the committee, looking at that and having looked at the Charter of Rights, it seemed to me that in fact it probably would, that this was a very reasonable piece of legislation: for the first time, to make it an offence to possess child pornography. But I was under no illusions. It was challenged, of course, on at least a couple of occasions, and there have been some changes to that legislation since, but it has managed to stick-handle its way through the years and is still part of the law of this country.

So it's not just me; the people in the Department of Justice who are experts in this area take their responsibility very seriously. So yes, they draft every piece of legislation, every line, every clause, with a view to ensuring to the greatest extent possible that these will withstand constitutional challenge.

But as I indicated to you, it is the right of individuals who are charged with or convicted of an offence to have the benefit of every law in this country and, I think most people say, the constitutional protections. And quite frankly, they predate both those two pieces of law that I indicated to you; you can go right back to the Magna Carta. Indeed, when I was in law school...all the provisions for the writs of mandamus and habeas corpus are constitutional protections. They are part of the laws of this country. I think most people would agree that the justice system we have in this country is a good one and that it has done a pretty good job of protecting the rights of Canadian citizens.

[The Chair, Conservative, Rick Dykstra]

Thank you, Mr. Harris.

We are now into five-minute rounds.

Mr. Lee.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

Thank you, Mr. Minister.

I want to ask a question that I think goes to one of the core charter issues in this legislation. I think it's a core issue. It goes something like this.

By the way, thank you for not reading your speech word for word and for dispensing with the repetition of the Tackling Violent Crime Act, which was getting a little bit Orwellian there for a while. Good decision. You'll have to get a new speech writer, though.

Here is the issue. It's purely technical, but here it is. The right to remain silent is a principle of fundamental justice protected by the charter. The question is, does the right to remain silent extend through the trial phase and into the sentencing part of a trial?

[Rob Nicholson, Conservative, Niagara Falls, ON]

Which particular trial? A trial in the first instance?

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

In all trials. The right to remain silent certainly exists during the trial of an accused. I'm just asking whether that right to remain silent for an accused exists during the sentencing part of a trial, of a criminal procedure. That's just the opening question. And that's been confirmed by the courts in--

[Rob Nicholson, Conservative, Niagara Falls, ON]

In the R. v. Lyons case?

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

--Hebert and others in 1990.

If it does, then the existence of the presumption in this section of the new Bill C-27, which is...your staff will know what I'm talking about. The existence of a presumption in section 753(1.1) would seem to undermine the right of the accused to remain silent. If you foist a presumption upon a convicted person, he or she has to rebut, and they've then lost the right to silence.

If the answer is no, that the right to remain silent doesn't exist after conviction, then I would also put this question to you. We are asking the convicted person to rebut, to prove a negative, i.e., that they're not dangerous. We're asking an individual who's just been convicted for the third time, by way of a presumption foisted upon him or her, to prove a negative, i.e., that they're not dangerous. I don't think in philosophy 101 anyone can be asked to prove a negative, because you can't prove a negative on balance of probabilities or by any standard.

Those are the three questions I would ask you: the right to remain silent before and/or after conviction, and whether you can, under the charter, foist upon a convicted person the need, by way of a presumption, to rebut a negative. If you want to call me an advocate for convicted persons, I guess we'll have to do that, but that's my job.

Mr. Harris, that is our job here. We have to actually charter test the thing before we squirt it out the end of the toothpaste tube. That's my job.

There's a question.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Starting at the beginning, thank you for your comments.

I usually don't stick too closely to a prepared text, but I have to tell you, Mr. Lee, that the people who do put these things together, in my opinion, do an excellent job. I can tell you that I have been very well served by the background papers and the notes I have received from them.

You then began to talk about the right of a person not to either testify or speak. It's based on the person's right to prevent self-incrimination. That's the basis of that. You don't have to say anything that might incriminate yourself.

Go ahead. Did you want to add something?

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

I was just going to say that there is a distinction between the right of a person not to incriminate himself or herself in giving evidence or in confessions, but the right to remain silent is a principle of fundamental justice standing on its own.

I'll stop there and let you continue.

[Rob Nicholson, Conservative, Niagara Falls, ON]

But what we're saying, Mr. Lee, on this particular piece of legislation is that these are individuals who have been convicted. They're already before the court with three serious offences for which they have been given conviction. We're indicating to them that they had better put something on the table to rebut the presumption that they are a dangerous offender.

In a sense, we're at the sentencing stage of this. You're right, an individual doesn't have to bring forward any evidence. They don't have to say a word. But I think it's clear, and I think it's fair enough to say, that we're talking about some of the most dangerous individuals in Canadian society. We're not talking about common assault here. As you know, that list...so again, I think it's reasonable to....

I'm sorry, we're running out of time?

[The Chair, Conservative, Rick Dykstra]

Yes, thank you, Minister.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

Could I ask the staff to provide an answer to those questions?

[The Chair, Conservative, Rick Dykstra]

Fair enough. As long as everyone--

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

It's a technical thing. If they can't give it today, they'll have to come back. While we can't have an answer now, it could be prepared in writing for later.

Thank you.

[The Chair, Conservative, Rick Dykstra]

Monsieur Petit.

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

Thank you very much.

Good afternoon, Mr. Minister.

Firstly, I am happy that you were able to group all of the bills into Bill C-2. I want to share with you testimonials from the province of Quebec in particular.

Mr. Boisvenu, whose daughter was killed, read a part of the bill. He was very happy about it because he is a member of an association many members of which have seen their children killed by recidivists using firearms.

Another person thanks you, in a way. That is Mr. Livernoche, the father of the young boy who was strangled following the release of a sexual offender. Perhaps in future, that sort of thing will no longer happen.

A third group from the city of Montreal might also want to thank you. I don't live there, but I know that my colleague Mr. Ménard does. There are 36 extremely violent street gangs. Ms. Mourani has written a book on the topic. These street gangs can decide to kill you just because they don't like the colour of the clothes you are wearing. In some cases, it is that extreme.

Another group with which I have often dealt in my personal practice would thank you also. This concerns impaired driving. The MADD group is very well aware of everything concerning deaths due to impaired driving. You know that in Quebec several people have literally been killed by people who were driving in an impaired state due to alcohol or drugs.

The question I would like to put to you, Minister, is important. Even though this has been said and repeated, I would like you to explain, because this must be well understood, why you decided, at this time, to group into Bill C-2 all of these laws that were dispersed all over the place, in the House of Commons or at the Senate. Can a Canadian citizen listening to you today expect that things will proceed quickly? What message would you like to give him?

[Rob Nicholson, Conservative, Niagara Falls, ON]

Thank you, Monsieur Petit, for that question.

You're quite correct that this bill covers a wide range of areas within the Criminal Code. I believe all of them stand up for the rights of victims. I think they are a reasonable response to a number of different issues that have confronted us. These were certainly issues we talked about in the last election that we would proceed with.

You're asking me why we put this together in one comprehensive piece of legislation. I'll begin by saying that it's because we didn't get them passed in the spring, or the winter for that matter, and I think these are pieces of legislation that will generally and for the most part be welcomed by Canadians. They want to see the different components of this piece of legislation in place.

I said in my opening comments that one of my favourites was the age of protection. It's long overdue in this country. We can argue about whether it should have gotten through in the spring or the summer, but I would go so far as to say that it's a century overdue. That piece of legislation reflects the mores and some of the thoughts of the 19th century, the idea that...and it happens. It happens. A 40-year-old can be preying upon a 14-year-old and then make the case or something that Canadian law doesn't cover this. It's wrong. It doesn't make sense to me. So I want to see this get passed, and I'm hoping that putting this together....

Again, we could argue for another hour about why it didn't get passed last spring or last summer, but I think this is a good way of profiling these issues. I think they have been thoroughly aired. I'm hoping this committee will move forward and say that these are reasonable items. All of them have been in the public arena for at least a year. Granted we made some changes, some amendments, in response to a number of groups, including the attorneys general, but I'm hoping this committee will move forward on this. I truly believe Canadians will thank us if we move forward and get this comprehensive piece of legislation passed.

Thank you very much for your comments. I appreciate your commitment to this.

[The Chair, Conservative, Rick Dykstra]

Madam Freeman.

[Carole Freeman, Bloc, Châteauguay—Saint-Constant, QC]

Good afternoon, Mr. Minister.

First, I would like to put a rather technical question to you. I think that your officials will probably be the ones to reply to it. Subsection 42(4) of the bill states that:

(4) Subsections 753(4) and (4.1) of the Act are replaced by the following:

In the subsection 753(4) in question, one reads the following:

(4) If the court finds an offender to be a dangerous offender, it shall impose a sentence of detention in a penitentiary for an indeterminate period.

The proposed amendment states the following:

(4) If the court finds an offender to be a dangerous offender, it shall: (a) impose a sentence of detention in a penitentiary for an indeterminate period; (b) impose a sentence for the offence for which the offender has been convicted which must be a minimum punishment of imprisonment for a term of two years [...] (c) impose a sentence for the offence for which the offender has been convicted.

Could you explain to me the purpose of the amendment you introduced? It is not entirely clear to me.

[The Chair, Conservative, Rick Dykstra]

Mr. Hoover.