Justice Committee on May 31st, 2007

[The Vice-Chair, Liberal, Derek Lee]

I call the meeting to order.

We're continuing our clause-by-clause consideration of Bill C-23.

We had reached and completed clause 23, coincidentally, and we're now moving to clause 24, for which there is an amendment proposed by the government.

(On clause 24)

I would invite the mover, who appears to be Mr. Moore, to introduce the amendment, and we will consider it.

I should say that we're joined today in our clause-by-clause consideration by Ms. Desaulniers and Ms. Soublière from the Department of Justice, as well as Mr. Moore, of course. Thank you.

Mr. Moore.

[Rob Moore, Conservative, Fundy Royal, NB]

Yes, thank you, Mr. Chair.

I'll move the amendment and Ms. Desaulniers will speak to it.

[Anouk Desaulniers, Senior Counsel, Criminal Law Policy Section, Department of Justice]

The purpose of the amendment is to correct a drafting error. If no amendment is made and the words “or the re-election was made under subsection 565(2)” are not added to the English version, when a preferred indictment is filed and the accused wishes to re-elect, he could force a preliminary hearing. As you know, preferred indictments are filed specifically to avoid a preliminary inquiry under very special circumstances. Therefore, the amendment is required to reflect this reality.

[The Vice-Chair, Liberal, Derek Lee]

Are there any questions on this particular subject? I see none.

Is there any further debate? Then I will put the amendment.

(Amendment agreed to [See Minutes of Proceedings])

(Clause 24 as amended agreed to)

[The Vice-Chair, Liberal, Derek Lee]

I go now to new clause 24.1, which is government amendment G-3. It's a new clause proposed by the government.

Mr. Moore, are you prepared to apprise us of this?

I should say that staff has had a look at this and there are questions about admissibility. So we'll be listening more carefully to the rationale here.

[Anouk Desaulniers]

Here again, the proposed amendment would correct a drafting oversight with respect to the regime set out under section 568. The drafters neglected to reflect this change in section 569 which pertains to Nunavut's unique situation. Under section 568, an accused may re-elect, when a preferred indictment has been filed. We would like the same situation to apply in Nunavut, but as you know, special procedural rules apply in Nunavut because of its unified court system. Yet, we have not proposed the same changes to section 569. I understand that section 569 is not affected by Bill C-23, but we feel that for the sake of consistency and procedural fairness, this amendment should be adopted.

[The Vice-Chair, Liberal, Derek Lee]

I will just remind members of the rule that governs an amendment that may be outside the scope of the bill. I'll use that term generally.

It's clear that an amendment that attempts to amend a section of the parent act, i.e., the Criminal Code, that is not already included in the bill would be out of order. I think the witness here, the government, has indicated that there is a connection, not because the non-included section was included in the bill, but because of the procedure involved. There's an analogous procedure amended in one section but not amended in the other section.

[Anouk Desaulniers]

That's right.

[The Vice-Chair, Liberal, Derek Lee]

There is a nexus between the two sections. Staff are prima facie of the view that this amendment is out of order because of attempts to amend a section that's not already included in the bill. So I suppose I should listen.

Monsieur Ménard, on that subject.

[Réal Ménard, Bloc, Hochelaga, QC]

Mr. Chairman, we are well aware that this is a procedural issue and that basically we are dealing with a fairly technical amendment. I agree that we need to be flexible, but I would like this precedent to extend to all subsequent amendments moved. Some of the people who occupied the chair before you—present company excluded because you are known for being flexible— were extremely inflexible when it came to dealing with the opposition.

Given the technical nature of the amendment, I would be willing to support it, provided it set a precedent in terms of your being open in future to the opposition parties. I therefore ask that you find this amendment in order.

[The Vice-Chair, Liberal, Derek Lee]

Are there any further comments?

Ms. Jennings.

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

I agree with the legal advice you received from the clerk to the effect that at first glance, the government's proposed amendment is not admissible.However, like Mr. Ménard, we have tried in the past to put forward amendments to a government bill in instances where the link was even stronger than the one explained to us by witnesses speaking on behalf of the government, but the chair of the committee deemed them to be inadmissible, end of story.

So, I am tempted to be complacent and accept Mr. Ménard's suggestion. However, I would like to hear from Mr. Moore and from each Conservative, or government party member, in order to determine if the explanations provided by Mr. Moore and the government witnesses are reason enough to find the government amendment admissible. I imagine they think it is. Will they remember this in future, when the chair rules other amendments out of order?

[An hon. member]

[Inaudible--Editor]

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

This is serious.

May I finish, Chair?

The government is asking us--

[The Vice-Chair, Liberal, Derek Lee]

The question here is on whether the amendment is admissible. I appreciate the guidance that Ms. Jennings and Monsieur Ménard have proposed.

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

I agree with the advice you've been given, which you expressed to this committee, that this amendment is out of order. However, there was a very tenuous link, which has been made by the government. You, as chair, have said it would appear that, notwithstanding the tenuous link, the amendment is out of order. You said it would appear--

[The Vice-Chair, Liberal, Derek Lee]

I have not decided yet.

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

You're correct. You have not decided. But you have expressed that, notwithstanding, it would appear.... You're now waiting to hear from members of the committee to help you make a final determination.

What I am saying is that in my view this amendment is out of order. It is more out of order than amendments we've seen in the past that have been ruled out of order by the chair. However, given that there is a slight tenuous justification and link with the previous amendments and the bill itself, I would be prepared...if I hear members of the committee recognize that the link used as the justification for this being ruled in order is weaker than the links provided for other amendments on other bills.

[The Vice-Chair, Liberal, Derek Lee]

Thank you.

Mr. Comartin.

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

I appreciate the sentiment that we have both from Mr. Ménard and, I guess, from the Liberal caucus on the committee, but the reality, Mr. Chair, is that you don't have any choice. This is not in order. Just in this session of Parliament in this committee, we have had a large number of proposed amendments ruled out of order that were much closer to being in order. The rule is very rigid. It's a rule, quite frankly, that I don't support, and it's one we should be looking at in Parliament and in the House to change. But the reality is that we have had consistent rulings by committee chairs that this type of amendment is out of order.

That being said, the only way we can pass this is by unanimous consent here in this committee. I'm certainly prepared to give that, and I think all members of the committee are, but that doesn't end the problem. When this gets back to the House, it will be caught there by the Speaker's staff, so we're going to need unanimous consent from all parties in the House as well.

I would propose that you rule it out of order, we overrule you, and then Mr. Moore, I guess, will have to take responsibility for seeing we get unanimous consent in the House. But that's the only way you can do it.

[The Vice-Chair, Liberal, Derek Lee]

Okay. Thank you all for your comments.

I'm going to save everybody the difficulty. The chair has to make a ruling here, having heard from all quarters. I'm of the view that the proposed amendment is in order, and my reason, which I may not have to give but I'm going to put on the record, is that the first section where we've made an amendment and where the bill makes a change is related to an analogous procedure in the subsequent section. The bill changes the procedure in the first section, and it's been described here that failure to change the procedure in the subsequent section would be regarded as an omission and would present an inconsistency.

I'm prepared to recognize the connection, the relationship between the two sections and to find that the amendment is in order for that reason, and that it's not outside the scope of the bill—the scope involving the particular procedure involved. I'm going to make that ruling, and if members feel otherwise, the chair can be challenged, but I leave that to you.

That's my ruling: it's admissible. And I'm prepared to put the question unless something else pops up before I do that.

Mr. Dykstra.

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

Mr. Chair, I understand you made your ruling, but I did want to comment before you added that. We certainly are of the opinion that if it were ruled out of order we would understand, and certainly not object, but obviously you've made a ruling, so I respect that.

[The Vice-Chair, Liberal, Derek Lee]

Okay. I'm sorry if I've offended anyone. Let's move on.

I will simply put new clause 24.1.

(Amendment agreed to on division [See Minutes of Proceedings])

(Clause 25 agreed to)

Mr. Petit.

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

On a point of order, Mr. Chairman.

Could we possibly proceed as we did last time around and adopt all of the clauses for which no amendments are being proposed in blocks, for instance, clause 25 to clause 28?

[Réal Ménard, Bloc, Hochelaga, QC]

We could group them together and adopt them as a block. The Bloc wants to make your life easier, Mr. Petit.