Bill C-2 (Historical)

Tackling Violent Crime Act

An Act to amend the Criminal Code and to make consequential amendments to other Acts

This enactment amends the Criminal Code by
(a) creating two new firearm offences and providing escalating mandatory sentences of imprisonment for serious firearm offences;
(b) strengthening the bail provisions for those accused of serious offences involving firearms and other regulated weapons;
(c) providing for more effective sentencing and monitoring of dangerous and high-risk offenders;
(d) introducing a new regime for the detection and investigation of drug impaired driving and strengthening the penalties for impaired driving; and
(e) raising the age of consent for sexual activity from 14 to 16 years.

[Catherine Kane]

As you know, in the Criminal Code there is a definition of “victim”, but it's for the purpose of victim impact statements, and it's quite an expansive definition. It indicates that it's not just the primary victim—that is, the dead, ill, or otherwise incapacitated victim; it can be the representative of the victim, a dependant, or a family member. Although that's only for the victim impact statements, the courts have often given a fairly liberal interpretation to “victim” in other contexts. To an extent that's been an evolution in the law: you're recognized as a primary victim if one of your loved ones has been murdered or can't be there on their own.

We would expect that the provision now in Bill C-2 that provides that the victims' evidence be deemed to be adduced would be interpreted in the same liberal way, but there isn't a provision in the Criminal Code that makes that crystal clear; it's only with respect to victim impact statements.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Both NDP-11 and the ones I've just withdrawn were recommendations from Mr. Cooper to deal with the very practical aspects of problems of prosecuting these cases to a successful conclusion. I think it was the best evidence we've had with regard to the difficulties of prosecuting these cases. It was interesting. He said twice—once when he was giving his original testimony and then in response to a question—that he really wasn't intending to change his practice if the dangerous offender part of C-2 went through. I thought that was pretty telling about the usefulness of the amendments we brought forward. But he was saying that we could help him and the prosecutors across this country by getting them access to better evidence so the judge can make better informed and higher-quality decisions, because all of the evidence with regard to the person's history, behaviour, conduct, and criminal activity would be before the court.

I am disappointed that the government was not prepared to support those amendments. I would hope they would at least support proposed section 753.02. As it is written now, the only evidence that is recorded and kept for the purpose of these applications, and then applied to the applications subsequently, is the evidence of the victim of the crime. The effect of the amendment would be to expand that so any evidence under these provisions, whether it's from expert witnesses, eyewitnesses, family members of the victim, or family members and friends of the offender, could be used in the subsequent applications under paragraph 753(5)(a) or subsections 753.01(5) or (6).

It's a practical, fairly straightforward amendment. We're moving the evidence, not just the victim's evidence but all of the evidence that has been put before a court and has been found admissible in those court proceedings. It's a wise, practical, simple solution to the problems the prosecutors have across the country. I'd urge all committee members to support it.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Mr. Chair, NDP-11, 12, 13, and 14 are all amendments that were recommended by Mr. Cooper. He is the crown attorney who is responsible for the dangerous offender applications for the Ottawa region.

I had a discussion with Mr. Moore at the end of last week indicating that I was bringing these motions in response to the request from Mr. Cooper. I recognize that with the exception of NDP-11, the other three would be inadmissible, unless there was unanimous support that they be allowed. The last three address sections that are not part of C-2. NDP-11 does deal with proposed section 753.02, which is part of C-2.

I suggested to Mr. Moore that if we couldn't get unanimous consent, I would not proceed. I do not have that unanimous consent from the government, so subject to the consent of the committee I will be withdrawing, NDP-12, 13, and 14. I would like to proceed with NDP-11, though.

[Douglas Hoover]

We meet regularly with the Canadian Bar Association, which provides us with feedback, and did so on former Bill C-27, which is again, as you are aware, replicated in Bill C-2. There are also perhaps more informal consultations.

I attempt to familiarize myself with case law, points of view of both defence and crown. The mandate of Justice Canada is not restricted to the position of crown; it is also to ensure that all aspects of the justice system work fairly and evenly for both sides. We're not necessarily an adversary in development of legislation. I think we've had this in mind in developing these procedures. We're confident that the current procedures in regard to disclosure are adequately safeguarded in these provisions.

Again, I would reiterate one final time that the suggestion by members of the committee regarding additional disclosure is something that, by raising it in this committee, we will take a more serious look at in the time we have in the future to do so.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

I will simply conclude by saying that Mr. Lee's amendment is clearly not on the fly. And nothing Mr. Hoover has said—I mean, he's here to provide advice to this committee and to answer questions--would lead me to conclude that the Justice officials believe Mr. Lee's amendment was on the fly.

I understood Mr. Hoover to say that given that Justice has not been able to consult with the stakeholders, he is not in a position to say whether this would be agreeable or create any difficulties to the stakeholders—the provinces—in the prosecution of dangerous offender applications. That's number one.

Second, Mr. Hoover also stated that the objective Mr. Lee is attempting to achieve would be better achieved under subsection 754(1), which is already captured in Bill C-2 under clause 48. But at the same time, he also said that given that there has been no consultation—

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

So you're not able to say whether an amendment such as Mr. Lee is proposing, which would be an amendment to clause 48 of Bill C-2, would in any way reverse or come into conflict with the provisions of Bill C-2 that create the reverse presumption. You're not in a position to answer that question.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

I'm not asking for departmental support. I'm just asking whether, if any member wished to go forward with the objective of Mr. Lee's amendment, the most appropriate section wherein that objective would be met would be an amended subsection 754(1) of the Criminal Code. If I'm not mistaken, it is already being amended by clause 48 of Bill C-2, and therefore a proposed amendment to section 48 would be in order.

I'm not asking for a ruling; I'm just making a statement, so the chair is saved by that.

My other question is whether, should an attempt be made for a friendly amendment from the floor—which the rules of this legislative committee permit—to section 48 in order to ensure that the criteria found under subsection 753(1) would be provided as part of outlining the basis, etc., it would not impede or diminish in any way the amendments the government is bringing to the Criminal Code that create the reverse presumption. This is the case where, once there has been a third conviction for a serious personal injury offence that is also a designated offence and for which the offender received a minimum of two years on each of the prior convictions, should the prosecutor in his or her wisdom decide to use discretionary authority and actually file an application, the reverse presumption that the offender is indeed a dangerous offender would obtain, unless the offender can rebut it through balance of probability. My question is whether this doesn't diminish and doesn't in any way attack the government's desire to create the reverse presumption that an offender is indeed a dangerous offender, which is rebuttable.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

I just want to make sure I am clearly understanding you. Clause 41 of C-2, as it now stands, replaces section 752.1 of the Criminal Code by a new section, which is section 752.01. That new provision is the provision that will now make it mandatory for the crown, upon a third conviction of a serious personal injury offence that is also a designated offence—a third conviction with at least two years' imprisonment—for the prosecutor, to advise the court as to whether or not he or she, on behalf of the crown, will be seeking an application for remand and assessment. It has absolutely nothing to do with the section of C-2 that creates the reverse presumption once that application is made.

[The Chair, Conservative, Rick Dykstra]

Mr. Ménard, your success, I'm sure, in the constituency is due very much to your very capable means of speaking. Unfortunately, we are at a legislative committee here and the amendment does seek to amend subsection 719(3) of the Criminal Code. Since the section actually is not being amended by Bill C-2, it is therefore inadmissible, and the amendment is inadmissible in itself.

Thank you. It's as close as we have to always being friends.

(Clause 39 agreed to on division)

(On clause 40)

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

Yes, and secondly, had it not gone against the actual principle of the bill, by virtue of the fact it was seeking to amend a section of the Criminal Code that was not being amended by Bill C-2, it was also out of order on that basis.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

This is not really a point of order but a point of clarification. It's not at all calling into doubt the vote that just took place. It's just a clarification on your actual ruling.

Why did you not rule that it was out of order because it was touching on a section of the Criminal Code that Bill C-2 was not amending? Your rulings on the previous amendments that had been presented were on the basis that they dealt with a section that Bill C-2 did not amend, and therefore were beyond the scope. That was not the wording you used in ruling this particular amendment out of order.

I'm just confused on that, and I'd like some clarification.

[The Chair, Conservative, Rick Dykstra]

Thank you, Mr. Comartin.

Basically, my ruling on this is that Bill C-2 amends the Criminal Code to provide for escalating minimum penalties for offences involving the use of a firearm. This amendment proposes to allow for the court to exercise its discretion and select a lesser punishment than the minimum provided for by the bill.

As House of Commons Procedure and Practice states, “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 my opinion, the introduction of the concept of discretion is actually contrary to the principle of Bill C-2, and is therefore inadmissible.

On the ruling, Mr. Murphy.

[The Chair, Conservative, Rick Dykstra]

All right, let me do this. Going forward, technically speaking, they are actually new clauses, but with the permission of the committee, I will refer to them as amendments, with the understanding that we're talking about them as new clauses.

Thank you, Mr. Lee.

I'm not going to get into reading exactly the same thing on each of these rulings, but I will, just for the record, note that the amendment seeks to amend section 467.14 of the Criminal Code, and based on the fact that that section is not being amended by Bill C-2, it's inadmissible, and therefore the amendment is inadmissible.

That is BQ-2.

We now have clauses 35 and 36.

(Clauses 35 and 36 agreed to on division)

[The Chair, Conservative, Rick Dykstra]

Thank you, Monsieur Ménard, but the ruling on this actually is that the amendment seeks to amend section 462.37 of the Criminal Code, and based on House of Commons Procedure and Practice, page 654:

an amendment is inadmissible if it amends a statute that is not before the committee or a section of the parent Act unless it is being specifically amended by a clause of the bill.

Section 462.37 of the Criminal Code is not being amended by Bill C-2; therefore it is inadmissible to propose such an amendment, and the amendment is ruled inadmissible.

So new clause 34.2, Monsieur Ménard. I obviously have comments on this with respect to procedure as well.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Could I suggest that the way we conduct the clause-by-clause is that we look at Bill C-2 in light of the prior bills, that we move on four of the five sections of Bill C-2 that have already been through a standing committee or special legislative committee, that we deal with them in the same manner, and that we move all of them, since they already have been passed. I have one amendment involving that, but it would be included in that section.

I don't know if it's possible to do that, Mr. Chair. I'm looking at the officials and the parliamentary secretary to see if it would be possible to break Bill C-2 into those kinds of sections, get through the ones that have already been passed as quickly as possible, and move to the old Bill C-27, the dangerous offender section, and spend our time on that.