Justice Committee on Nov. 25th, 2014

[The Chair, Conservative, Mike Wallace]

Is there any comment to the subamendment?

(Subamendment negatived)

(Amendment negatived)

(Clause 17 agreed to)

(Clause 18 agreed to)

(On clause 19)

We have amendment G-5.

The floor is yours, Mr. Goguen.

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

The government is making a technical amendment resulting from the Parliament's recent enactment of private member's Bill C-394, which created a new offence of recruiting to join a criminal organization.

This amendment ensures that the justice system participants can apply for a publication ban in respect of the new recruitment offence in the same way that the justice system participants can in other organized crime prosecutions. This amendment ensures that consistency in the treatment of organized crime offences for the purpose of publication bans. A failure to make this amendment would result in an inconsistent approach to organized crime offences in the Criminal Code.

(Amendment agreed to [See Minutes of Proceedings])

(Clause 19 as amended agreed to)

(Clause 20 agreed to)

(On clause 21)

[The Chair, Conservative, Mike Wallace]

We have two amendments.

We have Liberal amendment 11, and just so you know, Ms. May, amendment PV-15 will not be able to be put if the Liberal amendment is, so don't be mad at Mr. Casey for beating you to the punch.

Mr. Casey, the floors is yours.

[Sean Casey, Liberal, Charlottetown, PE]

Mr. Chair, this amendment deals with the notification for victims of plea bargains. The proposal I'm putting forward is one that you first saw in the brief of the Canadian Bar Association, that is, to limit the circumstances under which victims are to be notified of plea bargains to those circumstances under which there is a joint submission on sentencing in return for a guilty plea.

The argument is based on having the system grind to a halt, which we heard not only from the Canadian Bar Association, but also from the Canadian Association of Crown Counsel. The rationale is that informing a victim of any plea deal for a serious offence could cause unnecessary delays in prosecutions and would further strain already thinly stretched resources.

This bill would not provide resources to balance this requirement, as we heard quite clearly from the Association of Crown Counsel. This would impede a victim's interest in the fair and speedy administration of justice and undermine the system generally; however, where a prosecutor will be making a joint submission on sentencing, a victim has a reasonable interest in hearing in advance what the crown will submit as a just outcome.

I also would like to remind you of a specific instance that the Canadian Bar Association brought to our attention and which I think really drives home the point. I'm citing from their brief. They indicated that a typical experience for front-line crown counsel dealing with this proposed legislative change might go like this:

A Crown Counsel is dealing with 100 cases on a particular morning where the accused is scheduled to enter a plea. Lawyers for ten of the accused inform the Crown only that morning of a guilty plea. The Crown has no time to contact victims of the ten accused to tell them of the proposed pleas. When the Court asks the Crown if victims have been informed, the Crown says no in regard to the ten cases. The Court adjourns those cases, so the guilty pleas are not accepted. By the next appearance, four of the ten accused change their minds about pleading guilty and want a trial. Victims are then required to testify when they otherwise would have been spared the trauma of reliving their experience through vigorous cross-examination.

Where that notification is necessary, this would limit the circumstances to those where there is a joint submission on sentence. That is one of the two parts of the recommendation that we received from the Canadian Bar Association with respect to this clause.

Thank you.

[The Chair, Conservative, Mike Wallace]

Thank you, sir.

Is there anything further on this amendment?

Ms. Boivin, the floor is yours.

[Françoise Boivin, NDP, Gatineau, QC]

I am trying to understand how this will have the effect you are looking for. Will this prevent a case like the one you just mentioned from happening? I am not sure of that, because amendment LIB-11 reads as follows:

an included offence—and the prosecutor and the accused will submit a joint submission on sentencing, the court shall, after

Does that remain as is or does it end after the words “the court shall, after”? Does the subsection continue? What does that change in relation to the case mentioned by the lawyer from the Canadian Bar Association? The same case can happen again. That is my understanding of the new subsection 4.1. When it says that the accused and the prosecutor enter into an agreement, I think it usually means that there is also an agreement on the sentence. I stand to be corrected by the department officials, but an agreement is not reached for a plea alone. Usually, when there is an agreement, the individual does not just plead guilty. The person pleads guilty and there is an agreement on the sentence. I don't know which defence lawyer would tell a client to plead guilty without knowing what the sentence would be. As a general rule, in court, the defence tells the Crown that the client is ready to plead guilty if the sentence is such and such, and that is what happens.

I fully understand the argument and that we should not hold things up, but I think things will stay the same in the circumstances. I am trying to understand what will change.

Could you tell me whether “agreement” refers to “agreement on sentence”.

[The Chair, Conservative, Mike Wallace]

Okay, we'll have the officials answer.

Do you want to comment on her comments?

[Pamela Arnott]

You are absolutely right, Ms. Boivin. The current practice is to plead guilty to an offence in exchange for a submission of sentence.

[Françoise Boivin, NDP, Gatineau, QC]

Mr. Casey, how would the addition of the four lines prevent a judge from saying that they did not contact the people? I don't understand.

[The Chair, Conservative, Mike Wallace]

I'll put Mr. Casey back on the list.

You can respond to her in your turn.

Monsieur Goguen.

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

Basically, in the case of most serious offences, the government believes that an effort should be made to inform the victims of all plea bargaining, not just those who are involved in joint sentencing submissions. We're concerned that this amendment would lead to delays, and would place an undue burden on the crown prosecutor. The system has to function, and for that reason, we can't support this amendment.

[The Chair, Conservative, Mike Wallace]

Mr. Casey.

[Sean Casey, Liberal, Charlottetown, PE]

If I understand the question correctly it is, what difference does it make to simply call for notification of the victims in circumstances of a joint submission on sentence? What does that add? The answer I would give is, a joint submission on sentence is something that you know before you arrive at the court. It affords an easier opportunity to notify the accused, because it isn't a deal that's made on the courthouse steps.

A joint submission is almost always the result of prior negotiations, and something that you know when you get there. Therefore, the circumstance that I described where a deal is made on the courthouse steps, and then the whole thing has to be ground to a halt with the attendant delays and the attendant injustice on victims, is less likely to occur where the arrangement between the crown and the defence has resulted in them agreeing on the sentencing proposal. It's asking for half the loaf, quite frankly.

[The Chair, Conservative, Mike Wallace]

Thank you very much.

(Amendment negatived [See Minutes of Proceedings])

Amendment PV-15 has been removed.

(Clause 21 agreed to)

(On clause 22)

[The Chair, Conservative, Mike Wallace]

We have Liberal amendment 12.

The floor is yours, Mr. Casey.

[Sean Casey, Liberal, Charlottetown, PE]

Thank you, Mr. Chair.

My submissions on this will sound familiar, so I won't repeat them. This is quite simply an attempt to implement the wishes of, and to show respect for, our aboriginal communities, the same sort of respect that was manifest in the Supreme Court decision in Gladue and has been codified in the Criminal Code. It is what the Chiefs of Ontario have asked for.

This amendment specifically adds changes to victim impact statements such that, in weighing the statement of court, a review board should consider a victim or offender's aboriginal circumstances. The rationale for that is the same rationale that I offered when I put forth the other amendments that were recommended by the chiefs of Ontario, which I'm sure you don't need to hear again.

(Amendment negatived [See Minutes of Proceedings])

(Clause 22 agreed to)

[The Chair, Conservative, Mike Wallace]

There's a new clause being proposed through amendment G-6 which I, as chair, am ruling inadmissible as it amends a section of the parent act which is actually not in this act. It refers to a section of the Criminal Code which isn't referred to directly in this legislation, so I'm ruling it out of order.

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

I'm shattered.

[The Chair, Conservative, Mike Wallace]

He's shattered.

We're skipping proposed clause 22.1, thank you very much.

(On clause 23)

We have Liberal amendment LIB-13, and if it is moved, amendment PV-16 cannot be moved.

Mr. Casey.

[Sean Casey, Liberal, Charlottetown, PE]

Mr. Chair, once again I'm seeking to incorporate into this piece of legislation the good advice that we received from the Canadian Bar Association.

This amendment would delete the first clause of the change in principles of sentencing because it's redundant. This is the deletion of the proposed changes to the sentencing principles that would denounce unlawful conduct and the harm done to victims or the community that is caused by unlawful conduct. The sentencing principles already list harms done to victims and to the community. This change would be redundant.

Furthermore, additional changes mentioning responsibility and victims are similarly redundant, since harms are already included. This change would arguably throw off other key considerations, such as proportionality, rehabilitation, and reintegration.

This was the tenor of the testimony to us by the Canadian Bar Association that is encapsulated in recommendation number five of their brief.

[The Chair, Conservative, Mike Wallace]

Thank you, sir.

Is there anything further to Liberal amendment LIB-13?

Mr. Goguen.

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

This motion is inconsistent with the intent of the bill, which is to increase the consideration of the victim's perspective at all points of the criminal justice system.

Clause 23 proposes to codify how sentencing courts currently interpret the fundamental purpose of a sentence, namely to protect society. It also seeks to expand the current list of sentencing objectives to include denunciation of the harm caused to victims or the community by unlawful conduct.

We will be voting against this amendment.

(Amendment negatived [See Minutes of Proceedings])

[The Chair, Conservative, Mike Wallace]

Amendment PV-16 is removed. We go to amendment LIB-14, which will also affect amendment PV-17.

Mr. Casey.

[Sean Casey, Liberal, Charlottetown, PE]

The comments that I just made with respect to amendment LIB-13 are equally applicable, and I don't intend to repeat them. The exact same representations apply.

[The Chair, Conservative, Mike Wallace]

Okay.

(Amendment negatived [See Minutes of Proceedings] )

Amendment PV-17 is removed.

(Clause 23 agreed to)

(Clause 24 agreed to)

(On clause 25)

We have an amendment proposed, amendment G-7. If it passes, the result applies to amendment G-8 as well.

The floor is yours on amendment G-7, Mr. Goguen.