Justice Committee on June 12th, 2013

[The Chair, Conservative, Mike Wallace]

Mr. Wilks.

[David Wilks, Conservative, Kootenay—Columbia, BC]

Thank you, Mr. Chair.

I believe the subamendments are outside the scope of the intent of the amendment, because I believe—and I would ask for clarification from those who are here—that we are trouncing in on provincial jurisdiction as well, especially from the perspective of some of the points that have been brought out.

When we were talking about forensic facilities, for the most part those are under provincial jurisdiction and not federal. As a result of that, I would like clarification.

[The Chair, Conservative, Mike Wallace]

Can someone from the Justice Department answer that?

[Julie Besner]

Certainly the hospitals are governed by the provinces. However, part XX.1 of the Criminal Code does set out a whole regime to deal with mentally disordered accused who fall under their purview. It's one of those areas of the law that's very much intertwined. It's a mix of federal legislation, provincial legislation, and medical practice.

[The Chair, Conservative, Mike Wallace]

As chair, I suggest that amendment NDP-1 affects amendment NDP-14 and also clause 32. We have two choices in my view.

We can set it aside and come back to it later, and in the meantime have discussions and so on, or we can move forward and you can vote as to whether you want the subamendment to move forward, and then we would move to the amendment.

I will take some advice, and then we can move on to the other piece, and we can come back to this after further study.

Mr. Cotler's first on this.

[Irwin Cotler, Liberal, Mount Royal, QC]

Mr. Chair, I wanted to add to the mix. I also want to concur with what was just said. I think the concern with the provincial is that it is really ancillary to a federal regime, and we have this type of approach regarding the criminal law.

I have a concern about something that could occur, and I'd also like the witnesses to comment on that. That might be an additional reason to adjourn and come back. There might be some prospective privacy concerns on this issue. I think we might need to have some advice because those could prospectively invite a legal challenge. I agree with the amendments based on their merits, but I think the privacy issues may raise prospective legal concerns.

[The Chair, Conservative, Mike Wallace]

Thank you.

Mr. Albas.

[Dan Albas, Conservative, Okanagan—Coquihalla, BC]

Mr. Chair, I thought I had put my hand up earlier so I'm just going to ask a question.

Based on what Ms. Besner said, earlier you mentioned that as amended the amendment would not fit naturally within the area. Would the original one we wrote, amendment NDP-1, which we have in front of us, without the additional amendments that Mr. Mai has put forward, fit naturally in that section?

[Julie Besner]

The proposed subsection in Bill C-54 deals with providing notice to the victim regarding a discharge, so it is closely related to that specific amendment in that subsection.

[Dan Albas, Conservative, Okanagan—Coquihalla, BC]

Again, Mr. Chair, I'm very comfortable with this, and I'm not sure how to proceed other than to say I guess it's up to the committee how it wants to do it. I would look very favourably at the original one, because I think due diligence has been done. I'm not quite certain, and I do understand the position of the committee and where Mr. Mai is coming from.

[The Chair, Conservative, Mike Wallace]

Mr. Seeback.

[Kyle Seeback, Conservative, Brampton West, ON]

I would just say that it looks as if there are some good conversations going on over there. Some of the analysts are talking. I think we should defer it. We can come back to it, see what they've come up with, and at that point it's either yes, let's go with it, or no. Then we'll go back to the original amendment.

That would be my—

[The Chair, Conservative, Mike Wallace]

Are you okay with that, everyone? I'm trying to work on consensus here.

[Some hon. members]

Agreed.

[The Chair, Conservative, Mike Wallace]

(Clause 7 allowed to stand)

We're deferring clause 7 until we deal with all the other clauses, and we'll come back to it. That will also affect amendment NDP-14, and clause 32.

Now, just so everybody's on the same page, we're moving to clause 8.

(Clause 8 agreed to)

(On clause 9)

[The Chair, Conservative, Mike Wallace]

We have Liberal amendment 1.

Mr. Cotler, do you want to speak to your amendment? It also applies to Liberal amendment 14.

[Irwin Cotler, Liberal, Mount Royal, QC]

Mr. Chairman, this specifies that in deciding what conditions, if any, to impose on an NCR-accused, the factors to be considered by the court or review board must be based on medical evidence and expert testimony.

Mr. Chairman, Bill C-54, as proposed, establishes that public safety is a paramount consideration for decisions of review boards and courts with respect to NCR-accused. I want to make it clear that my proposed amendment does not change that. Rather, it clarifies that the determination of such public safety considerations must be, “on the basis of medical evidence and expert testimony”. I believe that without this, we might allow the impression to be had—and I don't think we'd want that impression to be had—that such determinations can be based on subjectivities of fear, or perhaps even reliance on stigma. Certainly, this cannot be Parliament's intention.

In a word, we must have expert testimony and medical evidence before us when such determinations are made, and this amendment seeks to clarify that this is indeed Parliament's intention with this provision.

[The Chair, Conservative, Mike Wallace]

Thank you.

To that amendment, Mr. Goguen.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

We're opposed to this amendment, Mr. Chair.

The motion being proposed will require a court or review board, when making a disposition, to base its decision only on medical evidence and expert testimony. This would be too limiting. There are other types of evidence that should be considered, for example, the victim impact statement.

When the court relies on this provision to make a disposition—i.e., right after it has found the accused not criminally responsible or unfit to stand trial—it's for a short duration. It is in its essence an interim order that lasts no longer than 90 days. After that, the review board holds a hearing and makes the disposition that will be in place for the following year. Requiring the consideration of medical and expert evidence by a court at this point would likely cause court delays, given that the task of qualifying an expert witness in court is often protracted and contested.

[The Chair, Conservative, Mike Wallace]

Thank you, sir.

Is there anything else on this amendment?

(Amendment negatived)

As amendment Liberal-1 fails, is also applies to Liberal-14. Instead of our voting on it, Liberal-14 will be defeated also.

Now we'll move to private member amendment 1, and it has been presented by Madam May.

I'll give you a couple of minutes to introduce your amendment.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Thank you, Mr. Chair.

I think they've used the term “PV” here for Parti vert. So it's actually not in the name of a private member. It's actually here as Green Party amendment 1.

As you see, it is on clause 9, which is amending section 672.54. You can follow it on page 4, at lines 35 to 40.

I'm proposing this amendment based on testimony that was received by the committee from the Canadian Bar Association to reinstate the “least onerous and least restrictive” requirement that has been used in not criminally responsible cases in the past.

I just want to cite this from the Canadian Bar Association evidence, at page 5:

Currently, the Court or Review Board must discharge absolutely any accused found not criminally responsible, unless they pose a significant threat to the safety of the public.... In making this decision, the Court or Review Board must consider the need to protect the public from dangerous persons,

—we certainly want to do that—

the mental condition of the accused, the reintegration of the accused into society and other needs of the accused. Where an accused does pose a significant threat to the safety of the public, the Court or Review Board must select the “least onerous and least restrictive” form of disposition....

Now that Bill C-54 makes it very clear and codifies what's already the law under the Supreme Court of Canada—that the safety of the public is the paramount consideration—I'm putting forward this amendment to say that certainly the balancing is very strongly in favour of the paramount consideration being public safety. The least onerous and restrictive qualification is now balanced against that paramountcy of public safety and security.

That provision, as the Canadian Bar Association recommends, can be reintroduced into the legislation very simply—through the mechanism of my Green Party amendment 1.

Thank you.

[The Chair, Conservative, Mike Wallace]

Thank you very much.

I'm going to rule on this....

Oh, sorry; you have a point of order.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

Chair, I just want some clarification from you, or from the clerk, through you.

My understanding, based on what you had mentioned earlier, was that independent members were welcome to sit at the committee to introduce their amendments. I would like some clarification on what “PV” means, because Ms. May is claiming it means Parti vert, which is the Green Party, which does not have official party status.

But I'm not trying to make that point. The point I'm making is technical in nature.

To go back, if that's the case, then we actually have an issue here. If the Green Party doesn't actually have official party status, then technically they cannot be making amendments at this particular committee, whereas private members actually can. So I would ask for clarification, through you, Mr. Chair, on whether or not this amendment is in order.

[The Chair, Conservative, Mike Wallace]

First of all, I will rule on the amendment, whether it's in order or not.

Just so members know, and it was news to me also, “PV” is an internal piece that our bureaucracy uses to identify the party. I also, in considering any non-official party...so the Bloc, they're independents. We have other independent members.

So PV is an internal piece that they've used on here. I would like to have seen...or my recommendation to them is that in future it should be “IND”—

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

No, I'm not an independent. I represent the Green Party. All the House of Commons documentation makes it clear.