Justice Committee on June 12th, 2013

[The Chair, Conservative, Mike Wallace]

You disagree.

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

We can't support the motion. Clause 12 currently provides a non-exhaustive list of factors to provide greater guidance to both the prosecutor making the application and the court hearing the matter on the kind of evidence that should be considered. The list of factors should therefore be retained.

[The Chair, Conservative, Mike Wallace]

Mr. Albas, go ahead.

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

Thank you, Mr. Chair.

On that point, if you read it, “the court shall consider all relevant evidence, including” and then it gives (a), (b), (c), (d), and (e) as some of them. Again, “including” means including those but not exclusive of. I would point out that “all relevant evidence” is included among the included.

[The Chair, Conservative, Mike Wallace]

Mr. Seeback, go ahead.

[Kyle Seeback, Conservative, Brampton West, ON]

I would agree with that. For Ms. May's position to make any sense, the proposed subsection would have to say that “courts shall include the following evidence”, and list it. Then her argument would make sense. But when you make a non-exhaustive list—her point actually—no judge would look at that and say, “Because it's not enumerated here, I can't consider it”.

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

Actually, there are a lot of court cases like that where, if you want to be clear, you can say, “including, but not limited to”. There have been cases where this kind of language has been seen as exclusive. I don't think that's the intent of the drafters. I'll stop here because I know I'm intruding on my time, Mr. Chair.

[The Chair, Conservative, Mike Wallace]

Okay. Thank you very much.

Anything further on PV-4?

(Amendment negatived)

Liberal amendment 8, and Liberal-8 applies to Liberal-18.

Mr. Cotler.

[Irwin Cotler, Liberal, Mount Royal, QC]

Thank you, Mr. Chairman.

This amendment specifies that the experts on whose examinations of the accused a high-risk finding may be based are to be medical experts. In other words, Mr. Chairman, the list of factors in proposed subsection 672.64(2) is open-ended, but serves to give the courts a sense of the kind of evidence they should be considering when deciding whether to designate an individual as high risk. As such, it's important to specify that any examination of the accused is to be part of a medically sound and evidence-based evaluation of risk.

Mr. Chairman, in my view, this addition not only helps decision-makers by encouraging them to seek expert advice, but it also helps ensure that their determinations are grounded in the best available evidence.

[The Chair, Conservative, Mike Wallace]

Thank you, sir.

Monsieur Goguen, would you like to speak to Liberal-8?

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

We oppose the Liberal-8 amendment as it could lead to this provision being unnecessarily restrictive. For example, it could result in the court only being able to consider the opinion of medical experts and not other experts outside the medical field. For example, psychologists may not be considered medical experts as they do not practise medicine.

Further, subsection 672.1 of the Criminal Code, defines the term medical practitioner as someone licensed to practise medicine in a province. I think the term medical expert could lead to confusion as to the meaning of each term. Further, the term medical expert is not a term known to criminal law, but the term expert has a well-understood meaning. There are tools and procedures in criminal law to determine whether someone is an expert. These tools may not be adaptable to determine if someone is a medical expert.

[The Chair, Conservative, Mike Wallace]

Okay. Anything further to Liberal-8?

(Amendment negatived)

Liberal-9, Mr. Cotler.

[Irwin Cotler, Liberal, Mount Royal, QC]

Mr. Chairman, I believe that this amendment adds an important factor to the list that we are considering regarding high-risk accused. Mental health experts made clear in their briefs and in their testimony before us that the risk posed by an individual with mental illness is significantly diminished if the individual benefits from adequate resources and supports. Thus, we believe the availability of such resources should be taken into account when making determinations with respect to an NCR-accused.

[The Chair, Conservative, Mike Wallace]

Thank you, sir.

Does anyone want to speak to Liberal-9?

Monsieur Goguen.

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

We don't support the amendment. The availability of resources and support to mitigate the risk can be considered by the court without explicitly setting it out. The provision is currently open-ended. The evidentiary burden in the high-risk accused application process falls to the crown. The nature of the evidence suggests it would likely only be available to the defence; otherwise, the crown would have to prove a negative, for example, no resources.

As introduced, there is nothing in BillC-54 that would prevent the court from receiving evidence on the availability of resources and support to mitigate the risk of public safety. An amendment to that effect is not necessary.

[The Chair, Conservative, Mike Wallace]

Anything further on Liberal-9?

(Amendment negatived)

PV-5, Madam May.

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

Thank you, Mr. Chair.

This is also, of course, within clause 12. We're now looking at proposed paragraph 672.64(3)(a).

As Bill C-54 is now written, the person who has been designated as a high-risk accused under this provision would be allowed to be discharged from the hospital and absent from the hospital for any purpose relating to treatment or for other medical reasons at the discretion of the person who is in charge of the hospital.

My amendment inserts “the Review Board”, which is in the position to know all of the relevant evidence about the high-risk accused, including conditions around the original determination of high risk, as well as whether this would be appropriate. I've also inserted the concept of that being “based on all available evidence”. Given the concerns about high-risk accused and their movements, which the Conservative government has expressed in putting this bill forward, it seems to me this is much too important a decision for it to be delegated to the person in charge of the hospital as opposed to being delegated to the most qualified agency, which is the review board.

[The Chair, Conservative, Mike Wallace]

Okay. Thank you.

I'm going to make a ruling on this PV amendment. Clause 12 of Bill C-54 does not provide any powers to a review board. The proposed amendment aims to provide specific powers to the review board that are not envisioned in the bill. We refer to page 766 of the House of Commons Procedure and Practice, edition two.

In the opinion of the chair, the amendment attempts to introduce a new concept that is beyond the scope of Bill C-54 and is therefore inadmissible. This ruling applies to amendments PV-6 and NDP-14. So that amendment is inadmissible. It's out of order.

There's nobody challenging the chair, so we're moving on.

Amendment PV-6, as just read, is therefore inadmissible as well. NDP-6 is also inadmissible due to PV-5 being inadmissible.

We're now on amendment Liberal-10. Liberal-10 also applies to Liberal-21.

Mr. Cotler, you have the floor.

[Irwin Cotler, Liberal, Mount Royal, QC]

Thank you, Mr. Chairman.

The mystery wordsmith behind the phrase that a high-risk designation “does not create a presumption of dangerousness and does not impose a burden of proving lack of dangerousness” comes yet again from the Supreme Court of Canada, and the oft-cited Winko decision. That being the case, I would seek to codify that—even with the new high-risk regime and a designation under it—it must be made clear that the burden of proof remains on the crown to continue to demonstrate dangerousness at subsequent hearings.

[The Chair, Conservative, Mike Wallace]

Monsieur Goguen.

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

We're not able to support the amendment. The first part of the amendment seeks to clarify that a high-risk accused finding does not create a presumption of dangerousness. While it is true that the existing law in the bill does not create any presumption of dangerousness, the bill does not create a court hearing process to lead to a judicial finding to confirm whether a particular accused is dangerous.

The second part of the amendment is unnecessary. The bill puts the burden on the prosecution to make the application and satisfy the court that the accused meets the test for the finding of high risk.

[The Chair, Conservative, Mike Wallace]

Is there any further discussion on amendment Liberal-10?

Seeing none, all those in...did you want to speak to it again?

[Irwin Cotler, Liberal, Mount Royal, QC]

No. I know what you're up to.

[The Chair, Conservative, Mike Wallace]

All those in favour?

(Amendment negatived)

[Irwin Cotler, Liberal, Mount Royal, QC]

I will say that there's a consistent record of the government opposing Supreme Court judgments, but I'll leave it at that.