Justice Committee on Nov. 25th, 2014

[Sean Casey, Liberal, Charlottetown, PE]

Thank you, Mr. Chair.

This amendment deals with aboriginal victims. It is in front of you because of the testimony we heard from the Chiefs of Ontario.

As you know, aboriginal offenders are specifically recognized within the Criminal Code under the Gladue principles that are contained in the sentencing provisions of the code, so there is a consideration in our criminal law of the unique and historical circumstances that our aboriginal community find themselves in. This amendment, of course, does not deal with offenders, but aboriginal victims. It uses the same principles, as was urged upon us by the Chiefs of Ontario, to consider the unique and historic circumstances that aboriginal victims have.

In particular, the amendment is to clarify that a prosecutor or a judge in a criminal justice matter involving an aboriginal victim or an aboriginal community, must consider recourse to a restorative justice program or component.

I would suggest that the committee ought to respect the principles articulated by the Supreme Court of Canada decision in Gladue, and extend special consideration for aboriginal circumstances to the victim side of the equation.

The victims bill of rights must recognize the serious problem of over-representation of aboriginal people in prisons, and the committee should encourage prosecutors and judges to have recourse to a restorative approach to sentencing, in keeping with the evidence we heard from the Chiefs of Ontario

Thank you.

[The Chair, Conservative, Mike Wallace]

Madam Boivin.

[Françoise Boivin, NDP, Gatineau, QC]

My question is probably mainly for the officials from the Department of Justice.

I understand the idea underlying clause 17.1, and I agree with its content, but I'm wondering whether it's related to the “Restitution” section, which includes clauses 16 and 17. Clause 16, which has to do with the basic principle, states the following:

16. Every victim has the right to have the court consider making a restitution order against the offender.

In the cases that Mr. Casey mentioned, it is possible for the judge to decide to proceed differently and use restorative justice. One does not preclude the other. Clause 17 states that this will become an enforceable order against the offender if payment is not made.

I am simply trying to see whether it is relevant to table clause 17.1 here. I saw this more as the civil side of the criminal case. That said, I could be mistaken.

[The Chair, Conservative, Mike Wallace]

Who would like to answer that?

Ms. Arnott.

[Pamela Arnott]

I agree with you, Ms. Boivin. There might be some inconsistency if this clause was placed following clause 17. It might create confusion in the courts. We might wonder whether restorative justice should be used only when dealing with restitution or if it is more general. Indeed, I agree with you.

[Françoise Boivin, NDP, Gatineau, QC]

In other words, there might be confusion. Victims rights include the right to information, protection, participation and restitution. But I thought we would talk here about restitution in the civil sense. The clauses that follow will make it possible to better determine the quantifiable damages and to impose a fine in addition to the sentence. A restitution order could be issued for an amount that, if it isn't paid, would become enforceable in a court of law. That avoids civil proceedings.

My concern is that the meaning of the phrase “restitution order”, which covers clauses 16 and 17, be changed.

[The Chair, Conservative, Mike Wallace]

Is there anything further to LIB-3?

(Amendment negatived [See Minutes of Proceedings])

Okay, we're on to LIB-4. If LIB-4 is moved, which I'm assuming it will be, that means PV-8 will be removed as it's identical.

The floor is yours, Mr. Casey.

[Sean Casey, Liberal, Charlottetown, PE]

Thank you very much, Mr. Chair.

Yes, I'd like to move the amendment that you have before you.

The motivation for this amendment, as I expect you know, is the advice provided to this committee by the Canadian Bar Association, and more particularly, in recommendation two of their brief.

This amendment is targeted to allow foreign victims of crimes that occurred in Canada—so it's a little different from the 9/11 amendment that I moved from the outset, which you didn't like—to claim restitution and file victim impact statements without being present in Canada. The requirement for foreign victims of crime in Canada to be present in Canada in order to file for restitution or to make a victim impact statement in Canada is, I submit, unfair and unnecessary. These victims should not have to incur the expense of returning to Canada and should be able to make such a statement by video link. That's the advice we got from the Canadian Bar Association and that's what this amendment attempts to do.

[The Chair, Conservative, Mike Wallace]

Thank you.

Monsieur Goguen.

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

This motion would require Canada to fully implement these rights under the charter, even though a foreign national returned home, and irrespective of lack of jurisdiction to do so in another country. We'll be voting again this amendment.

(Amendment negatived [See Minutes of Proceedings])

[The Chair, Conservative, Mike Wallace]

PV-8 is removed. We're on to NDP-4.

Madame Boivin.

[Françoise Boivin, NDP, Gatineau, QC]

We are still on the same clause.

The amendment reads as follows:

That Bill C-32, in Clause 2, be amended by replacing lines 10 and 11 on page 6 with the following: “under this Act only if they are a Canadian citizen or a permanent”

I understood from the comments made by some witnesses that requiring the person to be present was perhaps the weakest point.

Including the words “under this Act only if they are a Canadian citizen or a permanent” would certainly respond to that concern.

[The Chair, Conservative, Mike Wallace]

Monsieur Goguen.

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

We can't support this as it's inconsistent with one of the main objectives of the bill, namely to provide victims of crime committed in Canada with certain rights while they are still in Canada.

[The Chair, Conservative, Mike Wallace]

Is there anything further?

I'm sorry, Ms. May, but the answer is, no, you don't have the right to ask a question or talk, only to your motion.

(Amendment negatived [See Minutes of Proceedings])

Amendment LIB-5 is next.

Mr. Casey.

[Sean Casey, Liberal, Charlottetown, PE]

Mr. Chair, I move Liberal amendment number 5 which you have before you.

Once again, over on this side, we think that the advice of the Canadian Bar Association is worthy of merit and attention, and it is reflected in this amendment, more particularly, in recommendation number three. Recommendation number three deals with section 19(2) and it is in order to avoid unnecessary delays, and to allow for an application to be made at a pretrial stage so that counsel could be in place by the trial date. If the crown is bound by the present restriction under 19(2), the application would have to wait until a witness was physically brought to Canada to testify, resulting in additional expense and delay.

This deals with the crown's role in exercising rights on a victim's behalf. If a foreign witness under the age of 18 were outside of Canada, the crown could make a pretrial application for an order that he not be personally cross-examined as a witness. The purpose of this amendment is simply to allow for that to take place in the course of the proceedings, which would allow for the witness to be outside of the jurisdiction, and for the proceedings not to be delayed, in accordance with the advice that we've received from the Canadian Bar Association.

[The Chair, Conservative, Mike Wallace]

Thank you, Mr. Casey.

(Amendment negatived [See Minutes of Proceedings])

Members, make sure you speak into the microphone. There was one comment that was difficult to hear so make sure you are clear, but not always as loud as I am.

We're on amendment PV-9.

Madam May, the floor is yours.

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

Mr. Chair, that was, in fact, why I was attempting to get the microphone last time; I didn't understand a thing Mr. Goguen said. I know that perhaps this exercise is somewhat farcical as a real exchange of ideas, but I'd like to at least go through the motions.

On this amendment, the concern that this amendment addresses is that we do make a lot of information available in the course of creating victims' rights, and that is appropriate. But one of the appropriate restrictions on that kind of information is the infringement on the right of privacy. Green Party amendment PV-9 attempts to insert a simple paragraph between (c) and (d) in the listed concerns about not causing an interference with police discretion interfering with ministerial discretion. One of the other limitations would be as follows:

infringe upon the right to privacy of any person;

Thank you.

[The Chair, Conservative, Mike Wallace]

Madame Boivin.

[Françoise Boivin, NDP, Gatineau, QC]

Maybe Ms. May will be able to remove any worries I have with that pretty vast phrase.

My concern is that we say “infringe upon the right to privacy of any person”. Obviously, this also concerns the words “any person”.

The phrase “of any person” will also concern the person who would have been found guilty of something. Does that cover photos, pictures? That was something the victims said, that sometimes to know what the person looked like.... I'm just a bit afraid that the right to privacy is a very vast topic and it might create some.... I don't know; I just find it's a bit, maybe, too broad as an expression. I don't know how I could circumvent it.

I understand that we do not want to give rise to unreasonable infringement. It may involve an infringement of privacy under the bill, but be considered reasonable in the context of a free and democratic society. Here, however, it seems really quite broad and vast.

I do not think that anyone would object to someone knowing what a person looks like upon being released from prison, 15 years later, if only so that they are not shocked when they find themselves face-to-face with the person.

[The Chair, Conservative, Mike Wallace]

A brief answer, Madam May.

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

I hear you.

That is a legitimate concern, and I share it, but we also need to protect the rights of the persons who committed the crime.

Quickly, what this amendment hopes to do is ensure that someone's ability to rehabilitate is not.... We have to balance the rights. Of course, we all want to protect the rights of victims, absolutely. That's the purpose of the law. We're trying to make it stronger here through most of the amendments the Green Party' is putting forward. We do have a concern about tilting the balance in a direction that would impede on rehabilitation rights for somebody who has been convicted but wants to return to society, having paid their debt to society.

[The Chair, Conservative, Mike Wallace]

Thank you very much.

Is there anything further on PV-9?

On the item, and not a question of the member.

[Françoise Boivin, NDP, Gatineau, QC]

To the item, I wonder if the mover would agree to maybe a subamendment just to say:

…“de porter atteinte au droit à la vie privée de quiconque de façon déraisonnable”.

I think that is more sensible. Moreover, it respects the essence of what my colleague said. I think it also covers cases where it would be reasonable to share private information in a limited context.

I don't know whether she would agree to use this wording: “de porter atteinte au droit à la vie privée de quiconque de façon déraisonnable”.

[The Chair, Conservative, Mike Wallace]

Are you moving that subamendment?