Bill C-2 (39th Parliament, 2nd Session) Committee on Nov. 15th, 2007

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

Thank you, Chair.

Mr. Cohen, you have consistently used the term that the minister has certified that Bill C-2 is not manifestly unconstitutional. In response to questions of my colleague, you again used the term “manifestly unconstitutional”.

For the word “manifestly”, one the definitions is this: in a manifest manner, evidently, unmistakably. That's quite a low bar. I think most people would say it's a very low bar, because it would have to slap everyone in the face. Even people who don't necessarily have legal training would look at the law and say there's something wrong with it.

My question to you then is, in your experience as the senior general counsel in the human rights law section of the Department of Justice, are you aware of previous situations where draft legislation has come forward and has been discussed, where the legal opinion was that it is not manifestly unconstitutional, but that there are solid arguments that it might be unconstitutional—and solid arguments that it is constitutional—and where the minister has refused to certify it because the minister has decided to go for a higher bar than simply “manifestly unconstitutional”?

[The Chair, Conservative, Rick Dykstra]

Please be very quick in your response.

[Stanley Cohen]

What I will say is that I haven't left the words “manifestly unconstitutional” hanging out there alone. I have said that the situation is one in which the legislation is not manifestly unconstitutional and is capable of reason, justification, and credible argumentation such that a court would accept it in a properly argued challenge.

I think that's the best I can do for you on that in short order.

[The Chair, Conservative, Rick Dykstra]

Mr. Comartin.

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

Mr. Cohen, do you believe Gardiner is still good law, or do you have any reason to believe that Gardiner has been overruled by any of the subsequent decisions—Lyons, or Johnson, or whatever?

[Stanley Cohen]

Gardiner has not been overruled, to my knowledge. Gardiner is a decision of the common law and Gardiner has some expression in the current Criminal Code.

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

Thank you.

Mr. Hoover, in spite of Mr. Keddy's protestations to the opposite, there are a number of sections in here that are, or will be, on specific facts, minor crimes—not serious violent crimes. Does the department know how many cases there are each year that would meet the three-conviction test? How many B and Es do we have where people get two years? How many of those do we have in total? My estimation is that there are thousands of cases each year with a third conviction, where they would have had two priors and would have received two years or more.

[Douglas Hoover]

In deliberations during the formulation of the policy behind this, we were able, as much as possible, to look at case law and convictions. It's certainly not in the thousands on an annual basis.

Again, based on our review and our discussions with our provincial colleagues who actually do the prosecutions, etc., I think the upper limit we were able to put our finger on for the 12 primary designated offences with at least a two-year conviction in every case—which makes it relatively serious on the scale of things—was that there would be a potential maximum of about 50 cases coming forward. And then again, given the discretion of the crown to bring those forward, I don't think you would see 100% of those actually brought forward. But that was our best estimate of what we would see coming forward on an annual basis.

[The Chair, Conservative, Rick Dykstra]

Thank you, Mr. Hoover.

I want to thank both of you, gentlemen. I'm sorry about the time constraints. I'm sure we could have spent another hour or so at this, but I want to thank both of you for presenting this morning and for being at committee.

Just to close this up as the witnesses are moving from the table, we've concluded our witness schedule, so we are going to move into clause-by-clause consideration next week.

Concerning amendments, the motion the committee adopted was that amendments to Bill C-2 be submitted to the clerk 24 hours before the beginning of clause-by-clause consideration, without precluding the tabling of additional amendments from the floor. In order for the office of the clerk to receive a copy of the amendments package submitted by the members for three o'clock on Monday afternoon—in both languages, I would add—the amendments need to be submitted to the clerk by no later than noon. So I'm asking for agreement that we can assume that all members agree to send their amendments to the clerk by noon on Monday to facilitate the clause-by-clause process.

Very good. Thank you.

We are adjourned.