Justice Committee on Feb. 18th, 2015

[The Chair, Conservative, Mike Wallace]

I call this meeting to order. We're at the Standing Committee on Justice and Human Rights. We are televised today. There was a request to televise this meeting, and of course we make that happen when we can.

This is meeting number 62. As per our orders of the day, our order of reference of Monday, November 24, 2014, is Bill C-26, an act to amend the Criminal Code, the Canada Evidence Act and the Sex Offender Information Registration Act, to enact the High Risk Child Sex Offender Database Act and to make consequential amendments to other Acts.

Committee members, we are joined by a number of witnesses to do this clause-by-clause study. We have witnesses from the Department of Justice, the Department of Public Safety and Emergency Preparedness, the Department of Public Safety, the Canada Border Services Agency, and the Royal Canadian Mounted Police.

If you have questions on clauses or amendments, we'll call on these people to answer them.

Let's go right to the clause-by-clause study.

Pursuant to Standing Order 75(1), consideration of clause 1, the short title, is postponed.

(Clauses 2 to 6 inclusive agreed to)

(On clause 7)

Committee members, just so you know, we have about five amendments here. They're all in order. You should have received them in advance. For clause 7, the first amendment is from the Liberal Party.

Mr. Casey, the floor is yours to discuss your amendment.

[Sean Casey, Liberal, Charlottetown, PE]

Mr. Chairman, this amendment arises directly out of the testimony of Dr. Stacey Hannem, whom we heard from earlier this week.

The purpose of the amendment is to put back into the act the summary conviction option under this section of the code. You heard her explain that the removal of the summary conviction option would make young people who are trading pictures on their phones, perhaps in a juvenile and irresponsible manner, and in a manner that's not malicious, automatically subject to an indictable offence. It arises directly from that testimony, testimony that wasn't seriously questioned or contested.

I urge this amendment upon you as good advice from a respected witness.

Thank you.

[The Chair, Conservative, Mike Wallace]

Thank you, sir.

Is there anything further on this amendment?

Monsieur Dechert.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Mr. Chair, the government does not support this amendment. As Mr. Casey and others will recognize, it's inconsistent with the bill's objectives, in particular, the important objective of treating the two offences that prohibit the making and distributing of child pornography as very serious offences by making them strictly indictable. That is a very profound and important objective of this bill. For these reasons, the government will be opposing this amendment.

[The Chair, Conservative, Mike Wallace]

Thank you, sir.

Madam Boivin.

[Françoise Boivin, NDP, Gatineau, QC]

Thank you, Mr. Chair.

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

I imagine that you have followed the various testimonies we have heard. As my colleague Mr. Casey said, an example might be a young 21-year-old man receiving a pornographic picture or something like that. The clause as written right now does not leave a lot of room for those exceptional cases. As a result, the minimum sentences that were set out but have been slightly increased could be seen in a certain way.

Wouldn't the proposed amendment make it possible to manage such cases? The amendment is in order; it is fine from a legal point of view. It does not change the spirit of the bill as Mr. Dechert has just claimed. It keeps everything in place. The first part deals with an indictable offence liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year. Would that not enable the crown prosecutor to handle those cases?

Otherwise, I am afraid that the whole thing will be simply dismissed out of hand or constitutionally challenged .

[The Chair, Conservative, Mike Wallace]

Who would you like to answer that question?

[Françoise Boivin, NDP, Gatineau, QC]

Well, somebody from the justice department.

[The Chair, Conservative, Mike Wallace]

No, no. I'm asking the Department of Justice who would like to respond.

[Françoise Boivin, NDP, Gatineau, QC]

Oh, okay, because for me it's whoever has the answer.

[Nathalie Levman, Counsel, Criminal Law Policy Section, Department of Justice]

Mr. Chair, just to point it out initially, an offender who is under the age of 18 would be covered by the YCJA, so the mandatory minimum penalties wouldn't apply to—

[Françoise Boivin, NDP, Gatineau, QC]

[Inaudible—Editor]...what we're talking about.

[Nathalie Levman]

—such an offender. You mentioned “21”, so I understand that. There are other ways of addressing it through prosecutorial discretion. I would turn the committee's attention to the new offence of non-consensual distribution of intimate images, which will come into force in March of this year. That would be an option in these types of what are colloquially known as “sexting” cases, which I believe is what you're referring to.

[Françoise Boivin, NDP, Gatineau, QC]

The question here is not about non-consensual; it could be consensual. The infraction is having something that could be deemed pornographic. On that basis, there's a difference between a porno ring and some idiot—don't quote me, but I've heard worse here—

[The Chair, Conservative, Mike Wallace]

You are intelligent, by the way.

[Françoise Boivin, NDP, Gatineau, QC]

Yes, that's true.

But somebody who didn't really intend, although that might come into the guilt or not.... Anyway, my question was more that wouldn't it be more prudent to make sure the constitutionality of it would not be raised?

[Nathalie Levman]

There is the personal use exception that exists as a result of Sharpe. That's there to protect young people or anyone who takes photos or videos of consensually engaged in and legal sexual activity. There's that—

[Françoise Boivin, NDP, Gatineau, QC]

Protection.

[Nathalie Levman]

—protection there as well.

[The Chair, Conservative, Mike Wallace]

Thank you for those answers.

Are there any further questions or comments? We are dealing with the Liberal amendment to clause 7.

(Amendment negatived [See Minutes of Proceedings])

(Clause 7 agreed to)

Based on the voting pattern thus far, I'm asking for the indulgence of the committee. We have no amendments between clauses 8 and 21. Do you want to deal with clauses 8 to 20 inclusive? Are there comments on any of them?

[An hon. member]

No.

[The Chair, Conservative, Mike Wallace]

No?

Mr. Casey.

[Sean Casey, Liberal, Charlottetown, PE]

Mr. Chair, I'm happy to deal with them all at once, but I would like to make a comment on them as a group, please.

[The Chair, Conservative, Mike Wallace]

Yes, absolutely.

(On clauses 8 to 20)

[Sean Casey, Liberal, Charlottetown, PE]

Thank you.

Clauses 9, 10, 11, 12, and 14 all include increases to mandatory minimum sentences that were already increased once in Bill C-10.

This is the Einstein argument: the definition of insanity is doing the same thing over and over again and expecting a different result. You have all heard that the rate of incidents of these types of crimes has gone up since Bill C-10 has come into effect. The mandatory minimums that were put into effect in Bill C-10 clearly didn't work, so the solution you've come up with is to increase them again.

You've heard incontrovertible testimony before the committee time and time again that there is absolutely no empirical evidence that mandatory minimums will result in fewer victims. You've heard that they do not deter crime. You've heard that they contribute to prison overcrowding. You've heard that they disproportionately discriminate against aboriginal Canadians. You've heard that they are an unjustified attack on judicial discretion.

Yet these clauses, the clauses that I've just set forward, are an example of increasing mandatory minimums that were already increased once in your mandate. Therefore, I would respectfully submit that these clauses ought not to be passed for the reasons that you've heard in the evidence, and for the reasons that I've just put forward.

Thank you, Mr. Chair.