Justice Committee on Oct. 7th, 2009

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

This amendment was proposed by the Canadian Bar Association delegation when they came. It replaces the word “reckless” because it's not clear enough. There was a decision in R. v. Hamilton by the Supreme Court where they were critical of the term “reckless”, which appears someplace else in the Criminal Code. I don't know what the fact situation was in that case. They equated “reckless” with a substantial and unjustified risk. That's the wording I've put into the amendment I'm proposing.

The risk is that if we don't put in the clarifying wording, which is the Supreme Court's wording, at some point somebody will challenge this section and have it struck down as being too vague. Given that we have the opportunity to do that and directions from the Supreme Court of Canada that it's the type of wording they want used, it seems to me it's appropriate we do this.

Thank you.

[The Chair, Conservative, Ed Fast]

Thank you.

Is there any further discussion on the amendment?

Monsieur Ménard.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

There again, I am having trouble understanding how the two lines, plus a word, in the French version of the proposed amendment can possibly correspond to the six lines of the English version of that amendment. As a general rule, the French is longer than the English. I am still trying to understand what the amendment is.

[The Chair, Conservative, Ed Fast]

Monsieur Ménard, are you clear on the amendment?

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

No.

[The Chair, Conservative, Ed Fast]

Perhaps we could ask the justice officials.

Do you have an explanation on exactly where the French would be uncertain?

[Joanne Klineberg, Counsel, Criminal Law Policy Section, Department of Justice]

Do you mean the French version of the amendment?

[The Chair, Conservative, Ed Fast]

I think they're a little confused about exactly where the amendment is being inserted.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

Mr. Chairman--

[The Chair, Conservative, Ed Fast]

Yes, Mr. Lemay.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

No that is not the issue. We know where it goes. There is no problem in that regard. However, the English wording of the proposed amendment does not seem to have been properly translated into French. The wording of the amendment in English is not very clear, whereas in French, it is clearer. That's all.

[The Chair, Conservative, Ed Fast]

Do you have a response, Ms. Klineberg?

[Joanne Klineberg]

I can certainly understand what the English motion to amend means. I think it is just one of those cases where the French is shorter than the English. It is unusual, but there are some expressions that are easier to translate or that come out shorter in French than in English. The English is clear to me.

[The Chair, Conservative, Ed Fast]

Thank you.

Mr. Woodworth.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Thank you very much. I believe the word “reckless” appear in the English wording.

The amendment proposes that part of the English paragraph be repeated without the reference to the word “reckless”. I am assuming there is an equivalent part of the paragraph en français that contains that word “reckless” or its French equivalent, and that this portion of the paragraph has been perhaps inadvertently omitted from the French version of the amendment.

I hope I am getting it right.

[The Chair, Conservative, Ed Fast]

Monsieur Lemay.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

With all due respect for Mr. Comartin, it seems to me the proposed amendment is problematic. Please correct me if I am wrong, but it seems to me that the clause, as currently worded, is more comprehensive than the proposed amendment. The part where it says: “[...] knowing that or being reckless as to whether the information will be used to commit an indictable offence that includes fraud, deceit or falsehood” seems to me to be clearer than “or false [...] or knowing that there is a substantial or unjustified risk that the information will be used to do so.” The word “substantial”, in relation to risk is vague, and the word “unjustified” is even more vague.

In my opinion, the proposed amendment is more vague than what currently appears in the French version of the bill under this clause.

[The Chair, Conservative, Ed Fast]

Thank you.

We'll go next to Mr. Norlock.

[Rick Norlock, Conservative, Northumberland—Quinte West, ON]

The justice officials are now supposed to be telling us what amendments mean instead of the person who has moved it.

Mr. Chair, I think we have explored this enough, and I would like to call for the vote.

[The Chair, Conservative, Ed Fast]

I was going to recognize the other people who have been waiting a long time to speak.

Monsieur Petit, then Ms. Jennings, and then Mr. Comartin. Then we will wind it up.

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

Thank you very much.

In the French version of the initial proposed wording, at the end of subsection 402.2(1), it says “ou le mensonge ou sachant qu'il existe un risque sérieux [...]”. In the English version, it is the same thing, although it includes all the other indictable offences that could be involved, such as fraud, deceit, and so on. The French wording that makes reference to that appears further on in the paragraph, whereas it appears right at the beginning in the English version. That is the reason why there are more lines and more words; but, in actual fact, Mr. Comartin's proposed amendment should have included a reference to the words fraud, deceit, and so on.

I would like Mr. Comartin to tell us if he only intends to affect the French wording, where he says “or falsehood [...] or knowing that there is a substantial or unjustified risk that the information will be used to do so”. In the English version, it says:

purposes, knowing that the information will be used to commit an indictable offence that includes fraud, deceit or falsehood

The English version is therefore much longer than the French version. Am I right?

[The Chair, Conservative, Ed Fast]

Thank you.

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

Yes, you are; the English wording is much longer than the French wording. As I see it, the real problem is that the amendment originally proposed by the government does not have the same meaning.

that have in English of the word “reckless”.

I do not think the word “souciant” is an accurate translation.

The point I'm making is that I don't see the concept of “reckless” in the English version. I have to apologize to the committee that I didn't look at the French version at all when I did this drafting; I just looked at the English.

But I don't see the French concepts that use the word “souciant” are anywhere near as clear a translation of the concept of “reckless”. In fact the French version may be satisfactory in terms of what I'm trying to accomplish, which is a clear recognition that the person who is committing the offence is how we're going to define recklessness. “Souciant ”, in French, may catch that concept fairly accurately.

The bottom line is that I'm not sure we need the French amendment; we do need the English one in order for “reckless” to be more clearly defined.

[The Chair, Conservative, Ed Fast]

Perhaps we could have a comment from Ms. Klineberg, briefly.

[Joanne Klineberg]

We frequently encounter this question about the translation of “reckless” into “ne se souciant pas” in French. It happens in the drafting room, and then it happens repeatedly afterwards. The best answer we can give is that “recklessness” is a concept that has a long and rich jurisprudential history, as I am sure you are aware. When you look at the translation of the jurisprudence of “reckless”, the French term is “ne se souciant pas”. There are about half a dozen uses of the term in the Criminal Code, and in each of those instances “ne se souciant pas” is how “reckless” is translated in the Criminal Code.

Unfortunately my French is not quite good enough to feel the subtle differences. I have been made aware that they don't necessarily line up perfectly in common usage, but from a criminal law perspective, those are the precise terms used in translation of each other through the Criminal Code and the jurisprudence.