Bill C-2 (39th Parliament, 2nd Session) Committee on Nov. 20th, 2007

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

Thank you.

[Rob Moore, Conservative, Fundy Royal, NB]

Without consultation, the government is not going to support the amendment Ms. Jennings is talking about, or maybe trying to flesh out. Obviously in the future there could be some consideration. The minister is always engaged with his provincial colleagues on these things. But if someone comes up with an amendment to a bill, without any consultation with our provincial counterparts, the government wouldn't accept that amendment.

[The Chair, Conservative, Rick Dykstra]

Mr. Hoover.

[Douglas Hoover]

I can only reiterate what I have already said, and that is that we're not in a position to provide any explanation as to what the potential impact of the amendment would be, whether it be in subsection 753(1) or in section 754.

Again, clearly section 754 provides guidance to the court regarding disclosure. I think crowns take that very seriously. As they do in a regular trial, they would want to provide full disclosure to avoid any ramifications for possible appeals. That being said, all I can suggest is that we can continue to look at this down the road, but at this time I can't really provide any conclusion to it.

[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.

[Rob Moore, Conservative, Fundy Royal, NB]

Chair, Ms. Jennings is asking the witnesses to follow the rabbit trail she's on with her hypothetical question as to whether it would in any way, shape, or form impact on what we're doing. I wouldn't expect that anyone would be prepared to answer that when it comes up on the fly and off the floor.

On top of that, because of the nature in which it's coming forward, the government won't be supporting it anyway.

It's something Ms. Jennings might want to pursue in the future, but right now I think we should move on.

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

May I continue?

[The Chair, Conservative, Rick Dykstra]

You certainly may.

[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—

[Daryl Kramp, Conservative, Prince Edward—Hastings, ON]

I have a point of order.

[The Chair, Conservative, Rick Dykstra]

A point of order, Mr. Kramp.

[Daryl Kramp, Conservative, Prince Edward—Hastings, ON]

With all respect to the honourable member, we have heard the same argument for the third time.

You're making the same point again and again, and we've had the same answer. Are you going to go through it four, five, and six times, with a repetition of the same—

[The Chair, Conservative, Rick Dykstra]

Mr. Kramp, thank you. That's not a point of order. Madam Jennings did indicate that she was concluding.

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

Thank you, Chair.

I was going to remind Mr. Kramp that perhaps he did not hear my opening words, which were, “To conclude”.

I do not agree with the characterization that Mr. Moore has given to my comments and I do not believe that anything Mr. Hoover stated would give grounds to Mr. Moore's characterization of my comments. I do, however, take note of both Mr. Moore's statements, twice now, that the objective that Mr. Lee is attempting to achieve through his amendment, Liberal-1, is something the government is more than open to taking under consideration and to going back to their provincial counterparts to discuss with them as to whether or not they would be supportive of the objective that is being attempted to achieve in the Liberal-1 amendment.

Thank you.

[The Chair, Conservative, Rick Dykstra]

Thank you, Madam Jennings.

Mr. Bagnell.

[Larry Bagnell, Liberal, Yukon, YT]

Thank you.

I have another question for Mr. Hoover.

In that you can be determined a dangerous offender in four different ways, and, Mr. Hoover, you said you couldn't proceed with this because there's a lack of consultation, could you please let us know what consultation you've done, particularly with defence attorneys, as to how they're going to defend someone if they don't know which of the four criteria...because of the reverse onus provision that the defendant is being charged under as a dangerous offender? Would you outline for us the consultation you've done on that?

[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.

[Larry Bagnell, Liberal, Yukon, YT]

Are you saying no defence attorneys, no one, raised any concern that they wouldn't know what they're defending their client on when there are four categories and the reverse onus makes their client automatically guilty and they don't have an understanding of which category? You had no complaints about that?

[Douglas Hoover]

I think there's always a concern that new provisions based on interpretation could result in unintended consequences. We always try to look carefully at that. I can suggest, based on the comments in committee on Bill C-27 by the Canadian Bar Association, that we have taken full consideration of all comments regarding procedure and substantive aspects of the bill. Again, we're confident that disclosure is in fact fully covered in the case of the presumption on a third conviction.

[The Chair, Conservative, Rick Dykstra]

Thank you.

Mr. Murphy.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Briefly, I was struck that the parliamentary secretary said that this amendment might tread, I guess, on provincial attorneys general with respect to what they might have to say about it and that there hasn't been time for consultation.

Obviously, that's a very good idea in general, and I respect that. But in this case, as Mr. Lee said in his preamble, the guts of his amendment are to charter-proof it, make it a more watertight boat, if you like. I gather Mr. Hoover has canvassed, not on his own but on behalf of the DOJ, the requirements of Stinchcombe and other cases with respect to disclosure. I will ask Mr. Hoover what aspect of this amendment would require the attorneys general general consensus, as opposed to your own internal review, which I think you've done with respect to the adequacy of disclosure.

[Douglas Hoover]

I'm not sure about the nature of the question. Are you asking whether a consensus is required before we bring in legislation?

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

I'll just make it very clear. Mr. Moore said that this amendment wouldn't work; it's from the floor, it's on the fly--whatever he said. The thrust of Mr. Moore's comments—I may have gotten them wrong, Mr. Moore—was that the attorneys general would not have been consulted on this amendment, clearly, and that would be a major reason why the government would not support it.

This appears, by what Mr. Lee said, to be an effort at charter-proofing it, the whole provision. It also touches upon how you answer the question, quite logically, I might add, about the disclosure requirements, which is something you would look at as the Department of Justice, I suggest, without necessarily fully consulting attorneys general on the impact of this section.

[Douglas Hoover]

Again, our objective in consultation with all stakeholders, not just with attorneys general, is to ensure that we have full knowledge of how it will work throughout the country. I think it's important to understand, for example, that there are 13 jurisdictions, and within each of those jurisdictions there are different ways of doing things. The objective of full consultation is to ensure that what we propose to do will work as intended in all those jurisdictions. I think it's difficult to forecast with 100% certainty how any provision, procedural or otherwise, is going to impact on those jurisdictions. In terms of this type of amendment that is being proposed by motion, while on its face it may appear fairly straightforward, again, without full consultation we are not going to be anywhere close to 100% sure that it's going to work as intended.

So I think if the nature of your question is how I understand it, I can tell you that we would think it absolutely fundamental to discuss this with attorneys general, as with other stakeholders who are involved in the administration of justice, to ensure that in fact it would work as we intended. I can tell you that for the current provisions those consultations did occur. We are confident that as regards disclosure requirements, they will be adequate.

[The Chair, Conservative, Rick Dykstra]

Mr. Kramp.