Justice Committee on June 12th, 2013

[The Chair, Conservative, Mike Wallace]

Ms. May, at this committee you are an independent member of Parliament.

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

No, I'm not.

[The Chair, Conservative, Mike Wallace]

You can call yourself green, blue, yellow, I don't care, but what happens is that you're here as an independent member. You've put amendments—

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

Then I'll have to leave.

[The Chair, Conservative, Mike Wallace]

—to this bill.

To your point, the motion that we had states:

the Chair may call upon the member

—not the party, but the member—

who filed the proposed amendment to offer brief remarks in support of it.

That's why I called on the member, on Madam May, to make brief remarks to her piece.

Now, to your second point, I am making a ruling on PV-1. I'm going to call them “PV” because that's the way they are now, and that's the way they will be for the rest of the evening. In future, they may change them to independents, I don't know; that's not my doing.

The goal of Bill C-54 in clause 9 aims to remove from the Criminal Code the concept of a disposition that is “the least onerous and least restrictive to the accused” person.

The goal of the proposed amendment PV-1 is to bring that concept back, which is against the principle of the bill.

House of Commons Procedure and Practice, second edition, states on page 766 that:

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 amendment attempts to revert to what was in the parent act, which is contrary to the principle of Bill C-54, and is therefore inadmissible. This ruling will apply to amendments NDP-2, Liberal-3, PV-12, NDP-11, PV-13, NDP-12, and Liberal-22.

Does anybody need that repeated?

Are you challenging the chair, Mr. Cotler?

[Irwin Cotler, Liberal, Mount Royal, QC]

Yes.

[The Chair, Conservative, Mike Wallace]

There has been a motion to challenge the chair on that ruling. There is no debate.

You are voting in favour of sustaining the chair's ruling. Am I not correct?

[An hon. member]

And overturning the Supreme Court verdict too.

[The Chair, Conservative, Mike Wallace]

All those in favour of sustaining the chair's ruling? All those opposed?

(Ruling of the chair sustained)

The chair is sustained, so those are out. NDP-2 is out.

Shall clause 9 carry?

(Clause 9 agreed to)

That's carried. There was a new clause 9.1—it was amendment Liberal-2—but it has been withdrawn, so that's all that matters.

Liberal-3 was consequential to amendment PV-1, which I just ruled on, so it is out of order. Let's keep going here.

(On clause 10)

On clause 10, we have amendment PV-2.

Ms. May.

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

Thank you, Mr. Chair.

Not to reopen a difficult point, but I do think members need to look at the seating chart when they get back to their desks in the House, and they will find that the Green Party is acknowledged as the party I represent here in the House of Commons. It's not an error that clerks in every committee in which I have presented amendments, at the invitation of committees—not at my request but at the invitation of committees—have designated them with PV, for Parti vert.

This amendment, Parti vert-2, is an amendment to clause 10, replacing line 45 on page 4. What this is looking at is a recommendation that the committee previously heard from the Canadian Forensic Mental Health Network to remove the somewhat vague and arbitrary definition of “significant threat” and to replace it with the definition that was articulated in the Supreme Court in the McLachlin Winko v. B.C. decision.

I've duplicated it with some small drafting differences, but I think this committee is very familiar with the Winko case. So that line would now read that a threat to the safety of the “public means a real and substantial risk of physical or psychological harm to members of the public that is serious and that results from conduct that is criminal in nature”.

That takes you to the top of page 5. You start at page 4, and then we're at the top of page 5 with that replaced wording. Again, it's to clarify and avoid vagueness. I think it will certainly help the court in the future, in dealing with this legislation, to tie it to existing jurisprudence.

[The Chair, Conservative, Mike Wallace]

Thank you for that, Ms. May.

Mr. Goguen, on PV-2.

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

Thank you, Mr. Chair.

We're not prepared to support this motion submitted by the independent member. The motion would delete the reference to the fact that the risk to the public safety need not be violent in nature. Clarifying this element is an important proposal of the bill. The same can be said for specific considerations to the risk to victims, witnesses, and young persons.

Further, the motion introduces notions of “substantial risk” and “serious” harm. This would create confusion, as similar words are used in the test for the high-risk designation. The threshold in the regular disposition-making disposition provisions is intended to be lower than the risk threshold in the high-risk designation.

[The Chair, Conservative, Mike Wallace]

Thank you.

I want to make committee members aware that if amendment PV-2 fails, it will affect amendments NDP-3, PV-11 and NDP-10.

Monsieur Mai.

[Hoang Mai, NDP, Brossard—La Prairie, QC]

You said that, if amendment PV-2 fails, amendment NDP-3 would fail as well. You have made a decision that has prevented us from discussing the amendments we wanted to make. The Canadian Bar Association and the Quebec Bar have provided us with a lot of legal information. The way in which the bill has been drafted poses a number of problems, including some related to the charter, and they may well come up. There are also court decisions. Ms. May mentioned the Supreme Court decision in Winko, which sets out certain criteria. That is the reason for our proposal, which is very similar to Ms. May's. We want the clause to say “serious risk” rather than “risk” and we want the words “but not necessarily violent” to be removed.

We have listened to Parliamentary Secretary Goguen's remarks, but we still feel that the amendment is reasonable. In our opinion, this is a simple matter of considering the legal questions raised by the witnesses. We want this bill to be properly amended so that it will meet a test under the charter. For us, the amendment is important and we are hoping for support from Mr. Goguen and the Conservatives. But it does not look like we will get it.

[The Chair, Conservative, Mike Wallace]

Thank you very much.

Mr. Cotler, did you want to speak to PV-2?

[Irwin Cotler, Liberal, Mount Royal, QC]

Yes, Mr. Chairman.

Real and substantial is indeed a helpful addition to ensure the concern for public safety is well-founded. We're not quarrelling with that particular criteria. One might otherwise wonder how exactly public safety is threatened by non-violent behaviour such that it would be justified to limit the freedoms of a person who has not been convicted of a crime.

That is why I welcome this amendment. I just want to add, parenthetically, Mr. Chairman, that during the testimony of the various groups that made this recommendation, when I asked them if they were consulted with respect to this legislation, they answered no. Maybe if they had been consulted, we would not be in a position of having to move an amendment, which the government itself would have appreciated to begin with.

[The Chair, Conservative, Mike Wallace]

Thank you very much.

All those in favour of PV-2?

(Amendment negatived)

That means that NDP-3 is removed.

We're on to, under clause 10, Liberal-4.

Would you like to present the amendment, Mr. Cotler?

[Irwin Cotler, Liberal, Mount Royal, QC]

Yes, Mr. Chairman.

This is a “for a greater certainty” clause, a phraseology not unknown, ensuring that court and review board decisions accord with the following principles, again, as set out by the Supreme Court, that NCR-accused must be treated with the utmost dignity and afforded the utmost liberty compatible with their situation and that NCR-accused are not to be “punished or left to languish in custody”.

Mr. Chair, I note that some members may wonder where the eloquent phrasing of “the accused who has been declared not criminally responsible is to be treated with the utmost dignity and afforded the utmost liberty compatible with his or her situation, and is not to be punished or left to languish in custody” comes from. Lest members think that I have penned these words, they actually come—I think it's important to appreciate this, Mr. Chairman—from Supreme Court jurisprudence, reiterated by that body time and again. It was not a one-time situation. We're talking about a principle embedded in Supreme Court jurisprudence.

The same goes for the admonishment that an NCR-accused “is not to be punished or left to languish in custody”. In a word, Mr. Chairman, this amendment seeks to codify the language of the Supreme Court of Canada to make clear to review boards and courts of Parliament's intention to respect the rights flowing from the charter toward NCR-accused, who, it should be recalled, have neither been found guilty nor innocent of any offence.

I would hope that Parliament would seek to reflect and represent foundational principles of Canadian jurisprudence that have been set down time and again, and not sort of pre-emptively reject these amendments as if they have no meaning or substance.

[The Chair, Conservative, Mike Wallace]

Thank you.

On Liberal-4, we have Mr. Goguen.

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

These principles are embedded. That's why we're not supporting the motion. Codification of the principles that were enunciated by the Supreme Court of Canada is not necessary, as they are already clear. They are not the subject of any confusion. Further, the motion only addresses accused persons found not criminally responsible on account of mental disorder. However, this part of the Criminal Code applies equally to an unfit accused. The motion would create a significant unintended gap in the legislation.

[The Chair, Conservative, Mike Wallace]

Thank you.

Anything else to Liberal-4?

(Amendment negatived)

The amendment also applies to Liberal-24, which I will announce when we get to it.

(Clause 10 agreed to)

(Clause 11 agreed to)

(On clause 12)

We have Liberal-5. It applies to Liberal-15, just so you know.

Mr. Cotler, would you like to speak to the amendment and clause?

[Irwin Cotler, Liberal, Mount Royal, QC]

Yes, Mr. Chairman.

This amendment is fairly straightforward. Many witnesses have testified that "brutal nature" is a problematic concept that does not necessarily clarify the matter. We heard this again and again from expert witness testimony. This amendment leaves intact the consideration regarding cases where there is a substantial likelihood of violence endangering the life or safety of another person, which appear in paragraph (a).

My changes to paragraph (b) say that we also take into account cases where there is a serious risk of psychological, as opposed to physical, harm. By leaving in the reference to psychological harm, I believe this amendment captures the essential element of what was proposed in C-54, without the addition of the "brutal nature" factor, which many witnesses, particularly the experts, found to be highly problematic.

[The Chair, Conservative, Mike Wallace]

Thank you.

Mr. Goguen.

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

This motion should not be supported. The motion is not consistent with the intent of the bill, specifically with respect to creating a lower test to guard against potential grave harm that could be either physical or psychological. The term “immediate” in regard to the nature of the risk is potentially vague and imprecise. It may not accord with an individual's level of risk, which may vary at certain points in time.

[The Chair, Conservative, Mike Wallace]

Thank you.

Mr. Seeback.