Justice Committee on Nov. 23rd, 2011

[The Chair, Conservative, Dave MacKenzie]

We'll resume the committee meeting now at clause 207.

Mr. Harris, the chair had recognized you.

(On clause 207)

[Jack Harris, NDP, St. John's East, NL]

Thank you, Mr. Chairman.

We are now dealing with clause 207, which also talks about the issue of instructions, so I'll speak to that more broadly. We do have, as I indicated, a great number of problems with that. The instructions, as to what's going to happen here and the scheme that's established using these instructions...it makes it very difficult for the public to examine it and to understand what's going on.

The Canadian Bar Association said they wrote the ministry looking for an example of the proposed instructions, or the kind of criteria that would be used to instruct officers. They received no example in response, and they were very concerned about that.

Again, they said what I said earlier. The focus should be on ensuring that working conditions for newcomers in Canada are appropriate, safe, and non-exploitative, and ensuring that the criminal laws are strictly enforced against those who exploit vulnerable people.

We're talking here about the exploitation of women, perhaps in keeping with some of the other concerns about women being exploited for sexual purposes. But again, there were expert witnesses, people who provided testimony on previous occasions. For example, at the Citizenship and Immigration Committee on January 30, 2008, Professor Leslie Ann Jeffrey of the University of New Brunswick stated as follows:

It is very problematic that Canada would choose to address the issue of potential exploitation of migrant labourers by attempting to stop their legal migration rather than addressing the conditions of work. Trafficking most often occurs in precarious forms of labour that are unprotected by labour laws, government oversight, and union organization.

The fact that they're working in vulnerable sectors is what gives rise to the concern here, and the response.... Instead of depriving these migrant workers of an opportunity to work in Canada—they may be in vulnerable sectors, but they're also sectors where it's very difficult to get Canadian workers. That's why they're given work permits in the first place, because these workers are necessary to the economy or to the enterprise that is looking for them, and because they wouldn't qualify if Canadian workers could be found to fill those jobs. It is an opportunity for migrant workers to have the chance to enter Canada for work purposes—and we're talking about legal migration. In order to fix the problems, the focus should be on fixing the labour laws themselves.

There was another concern raised by Ms. Janet Dench, who was the executive director of the Canadian Council for Refugees and also testified on the previous iteration of this, Bill C-17. On January 30, 2008, at the same meeting of the Citizenship and Immigration Committee, and she said:

Not only does [this legislation] fail to protect the rights of trafficked persons already here in Canada, but furthermore its approach is condescending and moralistic. It empowers visa officers to decide which women should be kept out of Canada for their own good.

Once again, the concern here was raised by the Canadian Council for Refugees, which, through another witness on the same day, said that the main objective of anti-trafficking legislation must be to protect the human rights of trafficked persons, and that the bill doesn't do that.

There's a whole series of aspects of this bill that we are trying to improve upon by making amendments, some of which have unfortunately been ruled out of order. But the point is that we don't believe that this bill adequately addresses those concerns.

It fails to provide an opportunity for parliamentary oversight of the instructions in order to be able to determine through parliamentary debate—committee or otherwise—what the effect of those instructions could be, and frankly, it fails to be concerned that the application of this particular provision is actually aimed at the objectives that were proposed, and not used for some other reason, as raised in the concerns of the Canadian Bar Association—the unfocused and awfully broad statement of whatever instructions under public policy that the minister might choose to give.

Those are my comments, Mr. Chair.

[The Chair, Conservative, Dave MacKenzie]

Ms. Boivin.

[Françoise Boivin, NDP, Gatineau, QC]

Similarly, I was struck by what appears in the brief from the Canadian Bar Association. The Bar Association is clear on this point. You will also note that this is not the first time the government has addressed the subject. The brief says:

The government's Press Release and Backgrounder dated May 16, 2007 ("Canada's New Government Introduces Amendments to Deny Work Permits to Foreign Strippers"), indicates that the intention of the Bill is to prevent entry of "strippers" (exotic dancers) and other "vulnerable" applicants, including "low skilled labourers as well as potential victims of human trafficking." "The instructions would be based on clear public policy objectives and evidence that outlines the risk of exploitation [foreign worker applicants] face."

As the Canadian Bar Association so aptly puts it:

Despite the government's stated purpose for introducing the Bill, neither exotic dancers, nor victims of human trafficking, nor low skilled workers are mentioned in its terms. The Bill authorizes an officer to refuse an otherwise valid work permit to any worker, in any occupation or industry, subject only to (as yet, undisclosed) Minister's instructions. Foreign worker applicants do not exist in a vacuum. For every applicant there is a corresponding employer in Canada who has offered employment and who will be affected by refusal of the work permit. In most cases the employer has applied to Human Resources and Social Development Canada (HRSDC) for a Labour Market Opinion (LMO).

The Canadian Bar Association's concerns are clear and I agree with them.

I think this clause may seem fine on paper. However, it leaves so many vague and nebulous points that it will be extremely difficult to be sure that the objects of this bill will be achieved.

Those were the comments I had at this stage.

[The Chair, Conservative, Dave MacKenzie]

Thank you, Ms. Boivin.

(Clause 207 agreed to on division)

(On clause 208—Order in council)

[The Chair, Conservative, Dave MacKenzie]

Mr. Cotler, you have an amendment here. If you'll introduce it, I will give you a ruling on it.

[Irwin Cotler, Liberal, Mount Royal, QC]

Thank you, Mr. Chairman.

My amendment is really of a perspective, precautionary character. It basically seeks to recommend the following:

209. Before the coming into force of this Act, the Minister of Justice must

(a) conduct a review of the Act to ensure it is not inconsistent with the purposes and provisions of the Canadian Charter of Rights and Freedoms and to recommend that any provisions that may be at risk of breaching the Charter be amended or repealed, as the case may be; and

(b) initiate discussions with the provincial and territorial governments to

(i) address the issue of prison overcrowding, and

I might add, parenthetically, Mr. Chairman, that yesterday the Commissioner of Corrections raised the issue of prison overcrowding and double-bunking as a potential constitutional concern.

(ii) ensure that the implementation of the Act is conducted in the most cost-effective and cooperative manner possible.

And the final part of this amendment, Mr. Chairman, recommends that a crime reduction board be

established...with a mandate to

(a) promote cost-effective ways to reduce crime, prevent victimization, enhance community safety and strengthen services for and rights of victims of crime;

(b) gather, analyze and disseminate information about cost-effective ways to prevent crime and improve services for victims of crime;

(c) develop national standards of practice and provide training in the area of crime prevention and of services for and rights of victims of crime; and

(d) collaborate with the provincial and territorial governments to provide funding to local governments and community organizations in the area of crime prevention and of services for and rights of victims of crime.

Mr. Chairman, this is really in accordance with the overall objectives and purposes of the act that relate to matters of crime prevention, services to victims of crime, reduction of crime, and the like, and it borrows from a recommendation of one of our witnesses, Professor Irvin Waller, that such a board be established.

And in the matter of asking the minister to revisit the legislation to see if it comports with the Canadian Charter of Rights and Freedoms, as a former minister I understand that the minister did this initially. I'm just saying that in light of witness testimony, I made that recommendation.

[The Chair, Conservative, Dave MacKenzie]

I have a ruling for you with respect to your motion, sir.

The amendment attempts to introduce the concept of a crime reduction board that would review the act. As House of Commons Procedure and Practice, second edition, states on page 766:

An amendment to a bill that was referred to a committee after second reading is out of order if it is beyond the scope and principle of the bill.

In the opinion of the chair, the introduction of a crime reduction board is a new concept that is beyond the scope of Bill C-10. Furthermore, the amendment would entail expenses not already provided for and would require royal recommendation. Therefore, the amendment is inadmissible.

But you're welcome to debate the amendment.

[Irwin Cotler, Liberal, Mount Royal, QC]

I appreciate what you've said, Mr. Chairman. I anticipated that you might indeed say that, so I wanted to put this recommendation on the record.

I'd like the government to consider it because they're the ones who have the spending power and they can authorize such an initiative. As I said, this came from the witness testimony of Professor Irvin Waller and others.

I think it dovetails with the overall objectives and purposes of Bill C-10. I believe it would serve the objectives and the interests of Bill C-10 regarding crime prevention, services to victims of crime, federal-provincial cooperation, and a more effective and cost-efficient mode of proceeding. At the end of the day, this would be a positive initiative the government might seek to initiate, since I realize in terms of my initiatives I'm limited in doing so.

[The Chair, Conservative, Dave MacKenzie]

Thank you, Mr. Cotler.

Is there any further discussion?

Mr. Harris.

[Jack Harris, NDP, St. John's East, NL]

This is clause 209 we're now debating, is it?

[The Chair, Conservative, Dave MacKenzie]

Clause 208.

[Jack Harris, NDP, St. John's East, NL]

Oh, there is no clause 209. The proposed amendment to clause 208 is to add new clauses 209 and 210.

[The Chair, Conservative, Dave MacKenzie]

Yes.

[Jack Harris, NDP, St. John's East, NL]

Okay. Well, I'll refer to clause 208 and use that as an opportunity. It talks about the coming into force of this particular part, which is really about immigration and refugee protection. There is an opportunity, of course, to refer to the coming into force of this part of the act, and the act itself is something that concerns us and concerns me.

I'm glad to hear that Mr. Cotler has discussed the possibility of a crime reduction board of Canada, as proposed by Professor Waller. We do know, of course, that it would require the government to take action on that.

But you know, in the context of this whole legislation and what we have before our committee, and the concerns often expressed by the government about victims, it strikes me that a government concerned about that would look seriously at, and would want to implement, a crime reduction board, because the whole purpose of a crime reduction board is to prevent the creation of new victims by the reduction of crime in our country.

So in fact the provisions, and the idea of these provisions, are to promote cost-effective ways to reduce crime; prevent victimization; provide services for victims and for the rights of victims; and to gather, analyze, and disseminate information so that decisions being made in the future would be made based on evidence and not simply relying on concerns that might be raised, which may be popular in some quarters, saying, we're going to be tough on crime.

But the evidence will show—and we'll be having an opportunity to debate that shortly—and almost all the evidence shows, that the methods proposed by this legislation aren't actually effective in doing that. So a crime reduction board for Canada would provide a mechanism—and to do it through analysis, research, and cooperation with provinces and territories—to find effective ways of doing that.

Because of our concerns about the changes being made to part 5 of the Immigration and Refugee Protection Act and the amendments proposed, we will be voting against that and would not wish to see that part 5 be implemented.

[The Chair, Conservative, Dave MacKenzie]

Thank you, Mr. Harris.

(Clause 208 agreed to)

Now we revert back to a few clauses that we had left to deal with tonight, beginning with clause 39. The NDP have a number of amendments and the Liberal party has one.

Mr. Harris, please begin.

(On clause 39)

[Jack Harris, NDP, St. John's East, NL]

We're now, of course, not limited by time here, so we'll be able to be a little bit more expansive in expressing our concerns, not only about the specific clause or amendment, but about the aspects of the bill in general.

The first amendment proposes that Bill C-10, in clause 39, be amended by replacing line 3 on page 22 with the following:

in Schedule I, is guilty of an indictable

First of all, I should say that these amendments deal with provisions of the Controlled Drugs and Substances Act, and on page 22, clause 39 replaces paragraph 5(3)(a) of the Controlled Drugs and Substances Act with a new paragraph.

We are seeking to change the first part of that, which is

(a) subject to paragraph (a.1), if the subject matter of the offence is a substance included in Schedule I or II, is guilty of an...offence and liable to imprisonment for life

Then we go on to talk about mandatory minimum sentences.

The first amendment relates to the deletion of schedule II, so that the paragraph would deal with substances included in schedule I but would leave out schedule II. The reason for that is that schedule II relates to cannabis and its derivatives, and we feel that by including all of these in the one section, we are treating drugs that are less serious and less harmful and less subject to the concerns that are raised often in society, in terms of addictions and harm to society and harm to individuals, along with the other more serious drugs or narcotics that are contained in schedule I. That's actually a concern in a lot of the provisions, because when we read down through the entirety of clause 39, there are significant penalties for possession and for what's called trafficking, and the definition thereof, along with all of the consequences in terms of mandatory minimum sentences.

It may make more sense to perhaps put all these amendments on the table, Mr. Chair. Is that a possibility for one section?

[The Chair, Conservative, Dave MacKenzie]

Well, if you wish to move amendment NDP-5, I'll give you a ruling on that.

[Jack Harris, NDP, St. John's East, NL]

Okay, well, let's take them as one.

Amendment NDP-4 is moved. Now I'll move amendment NDP-5.

[The Chair, Conservative, Dave MacKenzie]

Okay.

[Jack Harris, NDP, St. John's East, NL]

Amendment NDP-5 deals with lines 5 to 36 on page 22. It's a whole section having to do with minimum punishment of imprisonment for a term of one year for certain offences. We seek to replace that with the following:

and the court shall consider the following factors, in addition to those set out in section 10:

—this refers to aggravating factors—

(i) whether the person committed the offence for the benefit of, at the direction of or in association with a criminal organization, as defined in subsection 467.1 (1) of the Criminal Code,

(ii) whether the person committed the offence in or near a school or on or near school grounds, or

(iii) whether the person committed the offence in a prison, as defined in section 2 of the Criminal Code, or on its grounds;

So it seeks to make the qualifications for mandatory minimums...that the court would take into consideration as aggravating factors, instead of subject to the mandatory minimums.

[The Chair, Conservative, Dave MacKenzie]

I'll give you the ruling from the chair.

Clause 39 of Bill C-10 amends the Controlled Drugs and Substances Act to provide for minimum penalties for drug offences related to trafficking. This amendment proposes to allow the court to consider certain factors while imposing a sentence, instead of imposing a minimum punishment provided for in the clause. As the House of Commons Procedure and Practice, second edition, states on page 766:

An amendment to a bill that was referred to a committee after second reading is out of order if it is beyond the scope and principle of the bill.

In the opinion of the chair, changing the intent of the clause is contrary to the principle of Bill C-10 and is therefore inadmissible.

[Jack Harris, NDP, St. John's East, NL]

Thank you for your ruling, sir. I think having put the amendment, we wish to make our intention clear as to how we would approach these matters.

Amendment NDP-6 reads that Bill C-10, in clause 39, be amended by deleting lines 18 to 22 on page 22. This deals with previous offences within the previous 10 years.

Is that in order?

[The Chair, Conservative, Dave MacKenzie]

That's fine, but if that one is adopted, then your NDP-7....

[Jack Harris, NDP, St. John's East, NL]

Okay. I'll read NDP-7 anyway, and I think that will become a function of the votes later on.