Justice Committee on April 19th, 2007

[Carole Freeman, Bloc, Châteauguay—Saint-Constant, QC]

Yes.

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

May I suggest something? In order for Ms. Freeman's subamendment to flow, this is how it should read. If we go to proposed paragraph 150.1(2.1)(a), it would be:

is less than five years older than the complainant; and

and the whole paragraph that's under (d) would remain. So the original clause would remain. It would then add paragraph 159.1(2.1)(c). It would say:

the accused is married to the complainant

So it would say:

(a) is less than five years older than the complainant; and (b) is not in a position of trust or authority towards the complainant, is not a person with whom the complainant is in a relationship of dependency and is not in a relationship with the complainant that is exploitative of the complainant.

That's all the original clause. The period would become a semicolon, and would be followed by “or (c) the accused is married to the complainant.”

[Carole Freeman, Bloc, Châteauguay—Saint-Constant, QC]

What you are suggesting, Marlene, is to have a), b)...

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

What you want is that this be added and that the other part be struck out, is it not?

[Réal Ménard, Bloc, Hochelaga, QC]

No, we only want...

[The Chair, Conservative, Art Hanger]

I'm going to suspend for a few minutes until this subamendment is worked through.

[The Chair, Conservative, Art Hanger]

I call the meeting to order.

Ms. Freeman.

[Carole Freeman, Bloc, Châteauguay—Saint-Constant, QC]

In order to clarify, we have tried to draft a sub-amendment that would merge paragraph a) and paragraph d) and that would read as follows: “a) is less than five years older than the complainant and is not in a position of trust...”

The second paragraph would be paragraph “b) the accused is married to the complainant”, preceded by the word “or” and by a semi-colon.

So in (a) we put “is less than five years older than the complainant”; it's put with (d), “is not in a position of trust or authority”; and the second...it's (b), “the accused is married to the complainant”.

[The Chair, Conservative, Art Hanger]

Do you have it written down? I'm a bit confused by this second round here.

Ms. Jennings.

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

This is how the subamendment would read:

(a) is less than five years older than the complainant; and (b) is not in a position of trust or authority towards the complainant, is not a person with whom the complainant is in a relationship of dependency and is not in a relationship with the complainant that is exploitative of the complainant; or (c) the accused is married to the complainant.

[The Chair, Conservative, Art Hanger]

Okay. So it's (a), (b), and (c).

[Carole Freeman, Bloc, Châteauguay—Saint-Constant, QC]

It is the same principle: a), b) c). We would take out what relates to common-law.

It's just to make sure that in certain authorities...they have the marriage, that's all; we do not open the doors.

I had merged paragraphs a) and b). You are merging paragraphs a), b) and c), Marlene. Paragraph a) was made up of paragraphs a) and b).

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

It depends on drafting. It is only a matter of drafting.

[Carole Freeman, Bloc, Châteauguay—Saint-Constant, QC]

In fact we just leave this one here, right? So it's (a), (b), and (c).

[The Chair, Conservative, Art Hanger]

Just for the record, you'll note from the bill that we keep (a) as is; (b) is actually (d), “is not in a position of trust or authority”; and at the end of (b), after “complainant; or”, is (c), “the accused is married to the complainant”.

[Rob Moore, Conservative, Fundy Royal, NB]

Can you say that again, Chair?

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

There's one error in that, just before you read it. After (a) it should be “and”, not “or”.

[The Chair, Conservative, Art Hanger]

That's according to your amendment. I was reading from the bill itself.

Mr. Moore.

[Rob Moore, Conservative, Fundy Royal, NB]

I asked you to repeat it, but I heard

(a) is less than five years older than the complainant; and

(b) is not in a position of trust or authority

That doesn't make a whole lot of sense to me the way it's worded.

[The Chair, Conservative, Art Hanger]

The original bill says,

(a) is less than five years older than the complainant; and

(b) is not in a position of trust or authority...

Then it goes down to:

or (c) the accused is married to the complainant.

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

When I listen to your reading of the Bill, Mr. Chairman, I understand the request of my parliamentary secretary. I do not see the word “and” in the Bill. if you add “and”, when the lawyers start using this clause, they will say “less than five years and...” This means that it is a conjunctive but there is no “and” in the Bill at this time. Whether one uses “or” or “and” makes a difference. I do not see why you said there is an “and” when there is not. That is what Mr. Moore was saying: there is no “and”.

When I read the sub-amendment, I see a paragraph a) submitted by Mrs. Carole Freeman, and paragraph d) becomes paragraph b). There is no “and”. And, if I understand correctly, there is a comma after b). The semi-colons and commas are important to lawyers: sometimes, they might save someone's life. If I understand correctly, there is a full stop after paragraph c). It is not a conjuctive, they do not add up. The way it is presented, the accused would have to prove “less than five years”, that he is not this or that, whereas they are three separate defenses. If you add “and”, they become three defenses that have to be used together. Any lawyer will destroy you with that. So, the “and” should not be there and I suggest that it be withdrawn.

[The Chair, Conservative, Art Hanger]

I'm told it's the different drafting conventions, but Ms. Morency may want to reply to that point.

[Carole Morency]

If you look at what's in the bill introduced by the government, in proposed paragraph 150.1(2.2)(b) you have the exception that the accused is the common-law partner and is not in a position of trust. That is the formulation that would better reflect the concern that I think Monsieur Petit was mentioning.

If the subamendment were to be worded in a similar way, it would read that the accused

(i) is less than five years older than a complainant; and (ii) is not in a position of trust; or (b) the accused is married to...

That is as you had proposed. The concern is that when you list them as (a), (b), and (c), from a drafting perspective that is not the correct approach.

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

That's how it's drafted in the original Bill C-22 in proposed subsection 150.1(2.1).

[Carole Morency]

That's right, because that provides only one exception, which is less than five years. But in the amendment Mr. Comartin proposes to merge these together. That's why I'm suggesting that if the intent of the subamendment is to follow through with the normal drafting convention, you would follow the model you have before you in proposed subsection 150.1(2.2).