Justice Committee on May 2nd, 2007

[Yvon Godin, NDP, Acadie—Bathurst, NB]

Clause 531 reads as follows:

531. Despite any other provision of this Act but subject to any regulations made under section 533, if an order made under section 530 cannot be conveniently complied with in the territorial division in which the offence would otherwise be tried, the Court shall order that the trial of the accused be held in another territorial division in the same province.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Thank you, Monsieur Godin.

[Yvon Godin, NDP, Acadie—Bathurst, NB]

I didn't raise a question yet. You probably have the answer. I'll let you go.

[Rob Nicholson, Conservative, Niagara Falls, ON]

I heard your concern. I'm sorry, please continue.

Are you asking with respect to the change of venue for trial, why we are doing that?

I'll indicate to you some of the information that I had on that. I guess your concern is why would we permit a change of venue when a trial cannot be held in one of the official languages of this country in a particular territorial division?

The provision that's been in force since 1978, and Bill C-23 does not in any way change the provisions with respect to a change of trial, is simply to clarify the language. Again, there's been no change with respect to the provisions that exist in the Criminal Code. Our attempt was simply to clarify, but maybe I didn't get the import of your question.

Go ahead.

[Yvon Godin, NDP, Acadie—Bathurst, NB]

I disagree. Clause 531 would seem to me to imply that from now on an accused will have to go to a territorial division other than his own for a hearing. That's what it means.

Do you recall the letter dated April 2, 2007 sent to you by Ms. Louise Aucoin from the Fédération des associations de juristes d’expression française de common law? New Brunswick, for instance, is a province which is officially bilingual. Trials take place in the region of the accused. Under this bill, the Court could tell an accused to go to Fredericton for a hearing. There is nothing to prevent that. Why would francophones from Manitoba be forced to go to Winnipeg to have their cases tried? Why wouldn't the courts go into the regions, as should normally be the case?

I am not saying that you are not telling the truth, but I do not know if your interpretation of this provision is right. If I am not mistaken, the purpose was to change the legislation to make it more flexible and perhaps increase the number of courts where people could have their trials held. However, if that were the case, a francophone individual from Manitoba would have to pay out-of-pocket to go to court, when courts should be going into the regions.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Obviously, it's a question of resources, Monsieur Godin.

One of the things that is absolutely vital is that the individual is entitled to have his or her case heard in the language of their choice. The provisions have been in the Criminal Code since, I believe, 1978, and they do provide that where, for a number of reasons, the facilities aren't there in some parts of this country to provide a trial in the language of choice of the individual, there are provisions that they can be moved.

In your case, you said--

[Yvon Godin, NDP, Acadie—Bathurst, NB]

I'm sorry, Mr. Chairman, but clause 531 would dictate that from now on courts are not required to travel and individuals must always pay. There is no limit to that.

[Marc Tremblay]

Mr. Godin, you may borrow my colleague's Criminal Code and look at the current provision.

[Yvon Godin, NDP, Acadie—Bathurst, NB]

I am not a lawyer and it would be nice if she could find it for me. All right, section 531 is easy to find.

[Marc Tremblay]

She will find it for you and I will speak to you at the same time. I will quickly read the current section:

531. Notwithstanding any other provision of this Act but subject to any regulations made pursuant to section 533, the Court shall order that the trial of an accused be held in the territorial division in the same province other than that in which the offence would otherwise be tried if an order has been made that the accused be tried before a justice of the peace, provincial court judge, judge or jury and jury who speak the official language of Canada that is the language of the accused or the official language of Canada in which the accused can best give testimony or both official languages of Canada and such order cannot be conveniently complied with in the territorial division which the offence would otherwise be tried.

[Yvon Godin, NDP, Acadie—Bathurst, NB]

What is the difference between the two?

[Marc Tremblay]

The difference is that we have a long phrase which I read quite quickly because I repeat it almost daily in the course of my work and which states: "[...]an order... before a justice of the peace, provincial court judge, judge or judge and jury who speak the official language of Canada that is the language of the accused[...]". It was replaced by: "If an order made under section 530[...]". So, we've taken a long phrase which is repeated in the Criminal Code on several times to define the three types of orders which may be made, and, to lighten the Code a bit, we summarized it in a few words.

If section 21 were struck from the bill further to this committee's deliberations, the same option to obtain such an order that has been in existence since 1978 would remain, for the reasons expressed by the minister.

You must understand that this provision corresponds to the needs expressed by the provinces, and to their respective realities. The circumstances in New Brunswick are quite different from those in Manitoba or B.C. This provision meets the provinces' needs, but it does not prevent New Brunswick or Ontario from holding trials in each legal district, as is currently the case. However, in Manitoba, where the province and the minority are calling for an itinerant court—the minority is asking for this—the province has the needed flexibility to manage the administration of its own justice. So, essentially, nothing has changed.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Godin.

Mr. Moore.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you, Mr. Chair.

I'll be splitting my time with Mr. Dykstra.

Minister, on the issue of forfeiture of equipment dealing with luring, we've been hearing a lot about Internet luring and the luring offence in our deliberations on some of the bills that have been before the committee. We also had a private member's bill that came before the committee dealing with luring.

All committee members are taking this issue quite seriously, so I'm interested to hear about the issue of equipment forfeiture. I know that when dealing with child pornography there can be forfeiture of equipment. I see in this bill that we're extending this to deal with Internet luring. Could you or your officials please comment a bit on the significance of that?

[Rob Nicholson, Conservative, Niagara Falls, ON]

Thank you very much.

You pointed out one of the significant amendments we are making in this bill. Certainly this brings the bill into line with what I believe most people would find reasonable. Quite frankly, it updates and covers off a gap, if you will, in the Criminal Code.

What it allows for is that if an individual has been convicted of Internet luring, there could be an order for the seizure, in this case, of the computers. It makes sense. And as you indicated in your opening question, there are offences that provide for seizure of whatever was used in the commission of an offence.

I think most Canadians would think it's a reasonable extension that computers and other equipment used in that particular offence should be subject to seizure.

Madame Desaulniers, did you have anything to add on that?

[Anouk Desaulniers]

There is already indeed a system in place for the seizure of offence-related property. The amendment allows for the seizure of a computer used to commit an offence, even a summary conviction offence. As you know, for the time being, provisions on offence-related property apply when offences are dealt with by way of indictment, so for the more serious offences, but we consider that when a computer is used to commit an offence, whether it is serious or less so, the Court should have the authority to seize this computer.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you, and I think that's a great move.

On the issue of the possession of break-in instruments, I know in my riding, which has some suburban and also rural areas, break-and-enter is a major issue. We know that it's being done by a small number of people, but in many cases, as we've heard in testimony here at committee, sometimes it's a small number of individuals who can create a lot of havoc in communities both large and small.

I note that Bill C-23 makes possession of break-in instruments a hybrid offence. I'm wondering what the significance of that is. What can we report back to our constituents on that being made a hybrid offence?

[Rob Nicholson, Conservative, Niagara Falls, ON]

I think it gives the crown some flexibility in judging the seriousness of the offence. It certainly makes it consistent with the offence itself of breaking and entering, which is, as you may know, a hybrid offence. The existing situation where the possession of the tools for that is an indictable offence, while commission of the offence is a hybrid offence, is again a bit of an anomaly and one that we want to correct.

Obviously, Mr. Moore, you know from our record and the legislative agenda we have introduced into Parliament that we take the commission of all crime very seriously, and we certainly want to convey that message. In a case like this.... Feedback the department has received on this is that it certainly would make the law more consistent, and in the end we do rely on crown attorneys across this country to get it right in terms of prosecutions. I consider this a fairly minor amendment to harmonize the existing law and one that I think will continue to work quite well in favour of the people of this country.

[Rob Moore, Conservative, Fundy Royal, NB]

Thanks, Minister.

I will turn the rest of my time over to Mr. Dykstra.

[Rick Dykstra, Conservative, St. Catharines, ON]

Thank you.

We spent a good deal of time reviewing estimates last week, and certainly I bring that back to today in talking about the efficiencies of this bill and whether or not we'll actually be able to achieve some long-term financial efficiencies as a result of moving this forward. From what you've said, there are obvious efficiencies in process here. I wonder if you might be able to comment on that.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Thank you very much, Mr. Dykstra. I am pleased to comment on that.

To the extent we can make changes that help improve, as you say, the efficiencies of the courts, this is a good idea. It saves money, saves time, it makes our system work better. What happens is that we at the Department of Justice get these suggestions that are made to us and we try to put them together and put them into a bill like the one you have before you. This has been consistent with the practice over the years.

I was a member of this committee for nine years, and I believe on at least three or four different occasions we were given bills that had a look at anomalies, inefficiencies, and gaps in the existing legislation, and we tried to put it together. I can't speak for this bill, but certainly when I had the opportunity to look them over, they sometimes weren't always the most exciting or the most dramatic changes to the Criminal Code, but my view was that it was a necessary part of the legislative process to have a look at these things. I believe we can all take some satisfaction that it helps to improve the Criminal Code. These are generally welcomed by practitioners and people who are involved with our criminal justice system.

For the reasons you indicated, it's a step in the right direction on just what you said, the efficiencies to make the court system work a little better, and we all have a stake in that, quite frankly. A system that gets bogged down or moves more slowly and doesn't adequately protect people's rights or give them access to an expeditious hearing is a challenge for us, but we try to meet that, and certainly the bill that you have before you is a component of what we're trying to achieve.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Dykstra.

Mr. Maloney.

[John Maloney, Liberal, Welland, ON]

Thank you, Mr. Chair.

My questions will be directed to clause 35, the delay of sentencing pending treatment.

Are there consequences if the treatment is completed? Are there consequences if the treatment is not completed? Is there a measure of success required, and how would that be determined?

Reference is made to addiction treatment and domestic violence. Are there other instances, such as anger management?

How does this differ from current provisions that allow for a stay of sentencing subject to a probation order requiring participation in treatment?

[Rob Nicholson, Conservative, Niagara Falls, ON]

Thank you, Mr. Maloney, and thank you for your questions with respect to that provision.

When I did my own review, of course, of this bill, that was a section I was particularly interested in, just for some of the reasons I think you indicated. It gives the judge an option to try to get some help for the individual. And in direct answer to your question, I believe it would make a difference, and I think that's the intent behind the provision. If an individual receives the appropriate treatment--and I'll get into that or perhaps have Madame Desaulniers comment on that--I believe it would then, of course, be taken into consideration.

That's why there is the delay in the sentencing, quite frankly. If you were going to give the sentence to the individual and then try to get that individual some treatment, it seems to me you wouldn't have quite the incentive for the individual to try to get the help they need. So there is a provision, then, of course, according to this section, that would allow that. And I would expect the judge to take that into consideration.

With respect to some of the other aspects of your question, I'll ask Madame Desaulniers to further comment.

[Anouk Desaulniers]

The provision as worded offers some guarantees. For instance, the prosecution and the defence must consent to this stay in sentencing.

The advantage of this system and its effectiveness is related to the fact that when judges postpone sentencing, they give the accused a chance, but at the same time, they have a sword of Damocles suspended over the accused's head. Indeed, if the accused does not comply with the treatment or does not behave properly, when he appears before the Court for sentencing, the judge may take these factors into account. The judge can tell the accused that he gave him a chance, but that the accused missed his chance and in theory the judge could, in theory, impose a harsher sentence.

This is different from imposing treatment on an accused in the course of his probation. When probation is ordered, the judge is no longer seized of the case because he imposed the sentence. To some extent, the accused has more freedom. He no longer has this sword of Damocles hanging over his head.