Evidence of meeting #25 for Justice and Human Rights in the 41st Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was amendment.
A recording is available from Parliament.
11:15 a.m.
Conservative
The Chair Conservative Dave MacKenzie
Thank you.
I was remiss. I forgot to introduce the two officials at the table with us: Ms. Klineberg and Ms. Kane.
May I have Mr. Woodworth?
11:15 a.m.
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
Thank you very much, Mr. Chair.
I listened with interest to Madame Boivin's comment and I would like to remind the committee that the question of reasonableness has always been a part of our law when it comes to issues of mistake, or mistaken fact.
For example, if I embrace someone under the mistaken apprehension that they are consenting and it turns out they were not consenting, the court would most definitely wish to examine whether or not my belief was reasonable.
This is a long tradition in Canadian law, and it is reflected in the existing versions of this provision, as the official mentioned. I think that if we were to depart from it, we would be creating a new perspective on things that would increase the confusion we are trying to avoid.
Apart from that, I would point out that as a matter of interpretation when we qualify the words in this way—“belief on reasonable grounds”—we are admitting only of that one kind of belief. If we remove that qualification, then we are admitting the possibility that other forms would be operative, so you might just as well amend it to say “they believe reasonably or unreasonably” as take out the qualification “unreasonable belief”. As a result, I have to oppose this motion.
11:20 a.m.
Conservative
11:20 a.m.
Conservative
Kerry-Lynne Findlay Conservative Delta—Richmond East, BC
I just wanted to add, in echoing Mr. Woodworth somewhat, that this has been a matter of a great deal of interpretation in our jurisprudence. The courts have considered reasonableness many times.
It may be that this is coming from some testimony that the perception of persons defending themselves should be paramount, but I think it would be very dangerous and not consistent with jurisprudence so far if the “reasonable belief” portion were restricted in that way. We want to, as Ms. Klineberg said, keep both the subjective and objective elements throughout the analysis. I think it's important to do so.
11:20 a.m.
NDP
Jack Harris NDP St. John's East, NL
Thank you, Chair.
I would just like to say that some of these amendments that we've put forth are for probing and discussion purposes, and I acknowledge that we've been persuaded by the arguments we've heard from both the government and the officials here, so we withdraw this amendment.
The approach we're taking here, as I think is evident from the speeches we're giving in the House, is that we want to ensure as best we can as a committee, in my point of view, that the changes being made are adequate. This is a form of collegial discussion; we accept the arguments that have been put forth, so we withdraw that particular amendment.
11:20 a.m.
Conservative
11:20 a.m.
Some hon. members
Agreed.
11:20 a.m.
Conservative
The Chair Conservative Dave MacKenzie
(Amendment withdrawn)
Now we'll move to amendment NDP-1.1.
Go ahead, Mr. Harris.
11:20 a.m.
NDP
Jack Harris NDP St. John's East, NL
Thank you, Chair.
Members of the committee will recall that I raised this question of the use of the wording “the act that constitutes the offence is committed for the purpose of”, etc., and the confusion there, at least in the mind of the ordinary person reading that. If you're saying that you are not guilty of the offence and then you talk about “the act that constitutes the offence”, then there's a little bit of a contradiction in terms.
I was somewhat reassured by Ms. Klineberg that the judges would understand. I'm not so worried about the judges, I have to say.
I think there has been a movement—not necessarily followed very well—to plain language in statutes, and it seems to me that at least the notion of plain language would be supported by adding the words “would otherwise” prior to “constitute”. It would be “the act that would otherwise constitute the offence”; in other words, in the absence of the defences that are set out there. It would read “the act that would otherwise constitute the offence is committed for the purpose of...”.
That's the proposal here. I don't think it interferes with any other aspects of it, but that same phrase is repeated a couple of other times, so there are, I think, four amendments that use the same suggestion.
Last time, there was a discussion about legislative drafting, but I think those of us who have practised law are certainly aware of the movement and the effort to try to make the law more understandable to ordinary folks. This seems to me to be a useful amendment along those lines.
11:20 a.m.
Conservative
Robert Goguen Conservative Moncton—Riverview—Dieppe, NB
Well, I certainly understand and respect the spirit of the intent, but for the purposes of the court, of course, the Criminal Code and criminal statutes are always very restrictively interpreted. I think the wording makes it very clear that unless the elements that make this an offence are not there, it is in fact an offence, so I don't really see any need to add the words “would otherwise”; maybe that would confuse the court.
I understand the spirit, but I think the clear and simple wording that's there would be adequate for the court to understand. Again, the with penal codes being restrictively looked upon and scrutinized, I think the wording is probably better left as is.
11:25 a.m.
Conservative
Brian Jean Conservative Fort McMurray—Athabasca, AB
I was just going to ask for the opinion of the officials who are here today. Quite frankly, I agree with Mr. Goguen. I think it changes the meaning of the clause. I would like to hear what they have to say.
March 8th, 2012 / 11:25 a.m.
Catherine Kane Director General and Senior General Counsel, Criminal Law Policy Section, Department of Justice
Mr. Goguen's comments would be our view as well. It was drafted to take into account that we start off from the premise that you're not guilty of an offence if these things are established, but that if those factors weren't established, the act you have committed may well be an offence, so to add in “would otherwise” be an offence adds a bit of an element of confusion.
That said, we know that at the end of the day, when the judge comes to the determination that your otherwise offensive act was done in defence of property or, in other cases, in defence of self, it's not going to be an offence. It's true that at the end of the day it would have otherwise been an offence, but as the law is drafted, it is preferable to refer to “the act that constitutes the offence”, because the starting point is that your act is an offence except that it was done in self-defence or in defence of property.
11:25 a.m.
Liberal
Irwin Cotler Liberal Mount Royal, QC
Mr. Chair, I have just a short comment. This exchange, for me, supports what I thought was the initial clarifying language I proposed so that we wouldn't have to get into this kind of discussion.
Thank you, Mr. Chair.
11:25 a.m.
Conservative
11:25 a.m.
NDP
Jack Harris NDP St. John's East, NL
I have just one final comment.
I hear what you're saying, but when you have legislation that says that “the act that constitutes the offence is committed” for a certain purpose and then state in proposed paragraph 34(1)(c) that ”the act committed is reasonable”, it's pretty hard to call it an offence if in fact what you're laying out here is that someone is not guilty of an offence.
It seems to me that the confusion comes from the fact that the words “constitutes the offence” are there, not otherwise, so we maintain our position.
11:25 a.m.
NDP
Françoise Boivin NDP Gatineau, QC
Just to be on the record, for me, it's really just clarifying it. It's just being logical. I fail to see where it changes the essence of what we're trying to say.
Changing the current wording of the bill—“the act that constitutes the offence is committed”—to “the act that would otherwise constitute the offence is”, as proposed in the amendment, means that an offence has not yet occurred. I don't see what the problem is here; we are just proposing a clarification in the wording. This expression may not be as precise or as positive as that proposed by Mr. Cotler. But his amendment may necessitate that the clauses be changed too much. Our expression, however, would have a very minor effect on the rest of the text.
I am not sure I understand. Like my colleague Brian Jean, I would like you to explain it again. It may have to do with the fact that I am reading it in French, while the English is not the same. I don't know. As I see it, this is simply a matter of logic.
11:25 a.m.
Senior Counsel, Criminal Law Policy Section, Department of Justice
I can just add that one way to look at it is to keep in mind that the way defences operate is that you can only claim a defence if, in fact, you are found to have committed an offence. You don't need to claim self-defence if, for instance, you didn't have the mens rea to commit the assault. It's only if you have committed an offence that these affirmative defences.... If you haven't committed the offence, you're not guilty on the basis of the offence not being proved.