Justice Committee on June 12th, 2013

[Kyle Seeback, Conservative, Brampton West, ON]

It's interesting that Mr. Cotler said witnesses were saying that the problem was with "brutal". I'm going to respond to that, because quite frankly, when I directed my questions to them I pointed out quite clearly that it's not just “brutal”. There's far more in that proposed section related to this.

The proposed section actually reads, “a brutal nature as to indicate a risk of grave physical or psychological harm to another person”. Then, it goes on to say, “In deciding whether to find that the accused is a high-risk accused, the court shall consider all relevant evidence”. That is a grab bag. It's not just the things that are listed below. It's anything else. It's all relevant evidence. It goes on to include things such as “the accused’s current mental condition” and “the opinions of experts who have examined the accused”.

When I pointed that out to people who had said the problem was with “brutal”, they acknowledged that, in fact, “brutal” is not the test. It's a far more encompassing test. For that reason, I think this proposed section should stand, and I certainly do not support the amendment.

[The Chair, Conservative, Mike Wallace]

Thank you.

Mr. Mai.

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

I'll wait for NDP-5.

[The Chair, Conservative, Mike Wallace]

That's Liberal-5. As I've said before, it also applies to Liberal-15.

All those in favour of amendment Liberal amendment 5.

(Amendment negatived)

We're on to Liberal-6.

Liberal-6 also applies to PV-3, NDP-4, Liberal-16, and PV-14.

Mr. Cotler, I'm sure you'd like to speak to Liberal-6.

[Irwin Cotler, Liberal, Mount Royal, QC]

Yes, Mr. Chairman.

Effectively, this amendment removes the proposed paragraph that allows the brutal nature of the offence to serve as the basis for a high-risk finding. Similar to the previous amendment, this addresses the concern regarding “brutal nature” by removing the entire paragraph in which it is mentioned. Besides the fact that “brutal nature” is arguably an overly broad phrase, which might itself invite charter concerns, it is problematic from a policy standpoint because the brutality of an act may indicate neither future risk or likelihood of recurrence.

I need not repeat the full testimony that we heard on this point, but I will cite the words of the Canadian Bar Association, which put it as follows:

...the high-risk designation is not only unnecessary, but self-defeating and counterproductive.

Therefore, this amendment seeks to remove it.

[The Chair, Conservative, Mike Wallace]

Thank you.

Mr. Goguen.

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

We're not capable of supporting this motion. The motion is not consistent with the intent of the bill, specifically to provide two possible options for the court to make a high-risk accused designation. The second branch of the high-risk accused scheme, whereby the brutal nature of an index offence may indicate a risk of harm to another person, is an important element of the bill that should be retained.

[The Chair, Conservative, Mike Wallace]

Thank you.

We have Mr. Mai.

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

We support the Liberal amendment because it proposes the same thing as amendment NDP-4. Mr. Cotler, as well as the experts we have heard from, pointed out the need to remove this provision because of the possible danger with it. When the Minister of Justice appeared before this committee, we asked him about it, but we got no answer. We asked witnesses, including the witnesses from the department, for the definition of “brutality” and we now know that there is none. We know that it would be something new in terms of the case law.

A number of witnesses expressed their concerns about this new concept, including the Canadian Bar Association and the Canadian Mental Health Association. So we would like to remove the idea of brutality. Indeed, we must not forget that this criterion would not affect the case of Guy Turcotte—as the minister more or less confirmed. But he is one of those whom this bill sets out to target.

In a word, this new concept creates a good amount of uncertainty and constitutional risks in terms of the Canadian Charter of Rights and Freedoms.

[The Chair, Conservative, Mike Wallace]

Thank you, sir.

Is there anything further on Liberal-6?

(Amendment negatived)

With that, as we know, PV-3 has been withdrawn because it is consequential to PV-2, which failed. NDP-4, because of Liberal-6 failing, also fails.

So now we're on NDP-5.

I'm assuming, Mr. Mai, you would like to introduce your amendment.

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

I certainly would, Mr. Chair. Thank you again for letting me speak.

Unfortunately, amendment NDP-4 failed. We wanted the concept of brutality to be removed, but, since that is not going to happen, we suggest an already well-known definition that reflects the Criminal Code and the case law. With this amendment, we are proposing to refer to grave harm to another person, which has already been defined in the Criminal Code.

If we do that, we will comply with the charter. It would also allow for a better understanding of the bill. We feel that it could really help to improve the bill and prevent both cases going to the Supreme Court and challenges to the constitutionality of certain provisions. In a word, it reflects the opinion of several experts who have come to meetings of this committee to tell us that it is a step in the right direction.

[The Chair, Conservative, Mike Wallace]

Thank you, sir.

We have Mr. Goguen on NDP-5.

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

Thank you, Mr. Chair.

We're not capable of supporting this motion. The motion introduces a redundancy with the chapeau of the provision that already states that the index offence must be a serious personal injury before an application for a high-risk designation can be made. Adding the word “future” is also superfluous as the provision is currently drafted. It's prospective with respect to the possible risk.

[The Chair, Conservative, Mike Wallace]

Okay, is there anything further?

This vote on NDP-5 obviously applies also to NDP-13, I believe. Just so committee members know, we are changing two bills. We're changing the Criminal Code and the National Defence Act, so the same thing has to be in both bills. That's why if it fails, both amendments are removed—or passed.

You can speak more to your amendment, if you like.

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

Mr. Goguen said that considering the future aspect of the risk is redundant. We do not share that opinion. A reference to brutality is a reference to a specific act that has been committed. But let us not forget that we are also talking about mental health here. We are proposing the use of the word “future” so that we are not just looking at the past, but also at what may happen in the future, such as a repeat offence. That is important, I feel. It is one of the topics that was debated when we studied this bill.

Suppose that a totally brutal act has been committed. As witnesses told us, the mere fact of killing someone is brutal. We agree with that. But when a judgment deals with brutality in the case of a person with a mental illness, the word loses its meaning. The experts were very eloquent on that. They said clearly that it had no automatic effect on the future. That is why we do not agree that this idea of future risk is redundant.

[The Chair, Conservative, Mike Wallace]

Thank you very much.

Anything else on NDP-5?

Mr. Wilks, go ahead.

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

I want to respond to the comment on future risk. It seems to be an extremely redundant remark because the fact of the matter is that no NCR patient would, in my opinion, be released into any form of insecure custody if there was any suggestion of a future risk.

[The Chair, Conservative, Mike Wallace]

Shall NDP-5 carry?

(Amendment negatived)

Liberal-7.

Monsieur Cotler, go ahead.

[Irwin Cotler, Liberal, Mount Royal, QC]

Mr. Chairman, if we are leaving in “brutal nature”, which my previous amendments sought to delete but which have been defeated, then we ought to at least define it. This proposed definition, “an act of violence that is out of the ordinary due to its exceptionally cruel and savage character”, at least provides some clarity and ensures that such acts are understood as being exceptional, even for serious personal injury offences.

I might add, Mr. Chairman, that the phrases “cruel and savage character” and “out of the ordinary” are not of my own penning but come out of several court rulings, notably the 2004 Ontario case, R. v. Campbell.

[The Chair, Conservative, Mike Wallace]

Monsieur Goguen, go ahead, with a reminder that this also affects Liberal-17.

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

Mr. Chair, we're not capable of supporting this motion.

The amendment attempts to define brutal nature for the purposes of a high-risk accused NCR scheme. However, the term is used elsewhere in the Criminal Code, i.e., the dangerous offender provisions in subparagraph 753(1)(a)(iii).

By defining the term for the purpose of this bill and not defining it elsewhere in the Criminal Code, it could lead to disparate definitions of the term.

(Amendment negatived)

[The Chair, Conservative, Mike Wallace]

Now we're on to PV-4.

Madam May, go ahead.

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

Thank you, Mr. Chair.

On a parenthetical note, wouldn't it be fun if I could vote and then you'd have to break every tie?

In any case, moving on to PV-4, I think it's very clear that as a matter of statutory interpretation, lists are difficult. Lists can be viewed later on by a court as suggesting an exclusivity because certain elements are listed and others are left out.

In this case, what I'm proposing in PV-4 is that we delete, in clause 12, proposed paragraphs (a) through (e) under proposed subsection 672.64(2), which are the specifics to try, I suppose, to set out for a court what all relevant evidence would be.

My position on this is that a court will know what “all relevant evidence” is, and by listing, we might accidentally leave out other factors that I think even Conservative members of this committee would want the court to consider, such as the concerns of victims, which aren't part of this list.

They cannot suggest here that there might be mitigating factors. There might be other evidence that would be open to a court if it merely said “all relevant evidence”, but by listing (a) through (e), we have suggested and prejudged for a court what's relevant. It could give rise to an appeal because the court might be seen to have gone beyond what was an exclusive list for consideration when, in fact, the term “all relevant evidence” is all one needs to ensure that the judiciary can, in the light of all the other sections of the act, make the determination of which accused is a high-risk accused.

In other words, we shouldn't put forward a list that could be seen later as exclusive of other factors.

[The Chair, Conservative, Mike Wallace]

Thank you very much for that.

Monsieur Goguen, go ahead.

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

We disagree.