Justice Committee on Feb. 28th, 2011

[The Chair, Conservative, Ed Fast]

That's why I asked the question. They may be different, but there are no amendments proposed to them. If you do wish to have them separately, we're prepared to do it on that basis.

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

I don't have a problem, Mr. Chair, with clauses 9 through 12, as I said, but I would want clauses 13 and 14 voted on separately.

[The Chair, Conservative, Ed Fast]

All right. I will call the question on clauses 9 through 12.

(Clauses 9 to 12 inclusive agreed to: yeas 10; nays 1)

We'll move to clause 13. We'll do that separately.

(Clause 13 agreed to: yeas 11; nays 0)

We'll do clause 14 separately as well.

(Clause 14 agreed to: yeas 10; nays 1)

(On clause 15)

Clause 15 has a Liberal amendment, LIB-2.

Perhaps, Mr. Lee, you could introduce that.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

I'm not moving that amendment, Mr. Chair.

[The Chair, Conservative, Ed Fast]

All right. There is no amendment on Liberal-2.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

I have a question, though. I'd like to ask Ms. Morency about clause 15, and specifically proposed section 172.2. That's a rather long and technical section intended to enable the.... What's the right word? “Entrapment” is the wrong word, but it's about the evidence and conviction of someone who is attempting to lure an underage person, a person under 18, and other scenarios.

As I read it, it seems to take away a lot of the protections that are built into our Criminal Code for our citizens. It does it in a rather conspicuous way because it creates a presumption, which is not normally part of the Criminal Code but does exist in some circumstances. Proposed subsection 172.2(3) creates a presumption in the absence of evidence to the contrary that the accused knew such-and-such. Proposed subsection (4) removes a defence; it is not a defence to say that you didn't know how old the person was unless you took “reasonable steps”. Then, proposed subsection (5) says it's not a defence if the person who you were dealing with was a police officer or a peace officer, and proposed paragraph 5(b) says that it's not a defence even if there really wasn't a real young person there.

So what I'm going to ask you about is whether the Department of Justice actually walked through.... By the way, I shouldn't be taken as disagreeing with the objective of this section, which is to trap, charge, try, and convict somebody who is trying to commit a criminal offence involving a young person.

But I am asking whether or not the Department of Justice did any kind of scenario test, a walk-through, a real-life situation, to determine that an innocent person would not be entrapped and convicted unwittingly with the removal of all these mens rea types of conditions. Because as I read it, you could get a conviction here with no victim, by being set up by people simply accusing you. The fact that you thought something different wouldn't even be a defence. Because there isn't even a real person, you wouldn't have taken any steps, and you wouldn't have been able to take any steps, to reassure yourself of the contrary in terms of your perception of age.

My question is this. As we've just set up this elaborate system to trap and convict somebody, even using non-existent people and specifically managed by police, has the Department of Justice vetted this and analyzed it for the purpose of making sure we haven't set up some system here that's going to trap an innocent citizen?

[Carole Morency]

The proposed new offence in proposed section 172.2 addresses a gap in the existing law that the existing law right now addresses only through the luring a child offence, in section 172.1, where an accused communicates directly with a young person through the use of a computer system for the purpose of facilitating the commission of a sexual offence against that young person. For example, if you have two adults--it doesn't have to be two adults--speaking directly to each other and their discussion is all about committing a sexual offence against a third person, a child, we can't catch that right now in the preparatory stages as we can with the existing luring a child offence.

So the first point I would make about the proposed new offence in proposed section 172.2 is that it is to address that gap.

Secondly, in terms of the scenario that the new offence could apply to, could attach to, the example that is given is the police undercover, and that's a possibility, but it's equally possible that you have adult A talking to dad B or to a tour operator somewhere else about providing a child for adult A to sexually abuse. In that case, there's a meeting of the minds. There's an agreement or there's an arrangement being made by those two people and there is perhaps an actual child in mind to facilitate the commission of the offence.

The proposed new offence wants to get at that before the child is actually sexually abused, much as we do now with the luring a child offence. It could happen, though, that you would have an undercover situation, as you've already described, where adult A is talking to someone, to adult B, about finding and having an opportunity to sexually abuse a child, and adult A doesn't know that adult B is an undercover officer. I appreciate the concerns about whether we are setting up this offence to normalize an entrapment situation. My written remarks in the undertaking to the committee were to attempt to reassure...or my comments were to reassure the committee that entrapment as a defence still remains alive now under the existing Internet luring offence and would equally under the proposed new offence.

Why are there all these defences? Because if you have two adults, adult A and adult B, who are actually communicating for that purpose, there's a meeting of the minds. When you have an undercover situation that doesn't fall within the entrapment scenario, a defendant could argue he didn't really mean it and he didn't really agree with me because, one, he's an undercover cop, and two, there isn't an actual child that he's going to make available to me.

So what the offence does is to parallel the approach we have right now in the Internet luring offence. As for the presumption you referred to, we have that right now in the Internet luring offence. On the reasonable but mistaken belief in age, we have that in section 150.1, and it's because it relates to the age of consent regime that we have. This offence is being superimposed on the existing age of consent regime.

So if the accused believes in his mind that he is communicating specifically for the purpose of finding a 10-year-old child so he can sexually abuse the child, his belief in the age is relevant. That's what this provision is doing to speak to that, because it has to put in the context of for the purpose of...it's going to be to commit a sexual offence against that child.

So what is different, and what you don't have in the Internet luring offence that you do have in Bill C-54 for this new offence, is the part you have pointed out in proposed subsection (5), which is that even if the other person is an undercover officer, or even if there isn't a real child that's being offered up, you could make out the offence. It does not mean that the defendant could not try to rely on the defence of entrapment under the common law, not at all. It is a common practice for police to go online in an undercover capacity, not to entrap--if it happens, the courts have said the defence is available--but to go into websites where offenders actually go looking for this kind of opportunity. They're talking with like-minded....

The committee heard from the OPP officer who said that this is a real concern. It's a real issue. I provided the committee with two cases, one where, in an Internet luring situation, the entrapment defence was available in the circumstances, and in the other where it was argued, but the court determined that it was unsuccessful and was not available in those circumstances.

So yes, the Department of Justice did walk through the scenarios of how this new offence might apply and who it might catch. The minister indicated in his remarks that the intention here is to get at the preparatory conduct, because you can't meet the threshold of a conspiracy offence unless you do something like this. When the Internet luring provisions were enacted in 2002, it was the same thing: it couldn't get at the attempt threshold, so the new offence was intended to address the situation before the steps got so far that the child was actually sexually assaulted or on the verge of being abused.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

Thank you for your candour. That was a fairly complex answer to a foggy question.

I applaud the determination to catch these predators before they do their harm, but what I see here is the statutory construction of a trap. I've avoided the use of the word “entrapment” because entrapment is actually a defence, but is what we've constructed a statutory trap? Everyone around the table would agree that it has been designed for a particular purpose, but I'm asking you if the department has actually turned its mind to whether or not this trap might trap other fish if it is put in the wrong hands and used in bad faith. If the police can't get the guy on bank robbery, they could set him up under this one. They're going to set the guy up and they're going to get him one way or another.

This is a statutory trap, and I actually don't see another one like it in the whole Criminal Code. Maybe it's a pity we can't do it for bank robberies, murders, and all the other conspiracy offences and catch the guys before they do it, but this is a statutory trap, and I'm only asking for some reassurance from the department or the government that they've looked at this trap and that it's not going to be abused to trap otherwise innocent citizens.

[Carole Morency]

To reiterate, we think this does address a gap. We have turned our minds to the issues and the different scenarios that might apply, and there are safeguards in place in the offence and at common law, so that in the remote off chance that somebody does try to use it in an inappropriate way, the courts do have the tools to ensure that an accused in that situation is acquitted. The case that I provided to the committee, the 2010 R. v. Sargent decision from the Provincial Court of Alberta, provides an example in which an entrapment defence did not work, but it did work in the R. v. Bayat 2010 decision of the Ontario Superior Court of Justice.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

Thank you, Mr. Chair.

[The Chair, Conservative, Ed Fast]

Thank you.

Go ahead, Mr. Comartin.

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

Thank you, Mr. Chair.

I want to be on the record that because of the mandatory minimums that are included in proposed sections 172.2 and 173, I will be voting against it. However, I also want to be very clear that this amendment proposed by the government, in spite of the problems with mandatory minimums, is in fact a good development, one that we absolutely need in terms of giving both our police and our prosecutors the ability to catch this type of activity within the scope of the Criminal Code. I just want to recognize that.

However, the rest of it, in terms of the mandatory minimums, just flies in the face of all the evidence that we've heard about the need. These kinds of offences are getting jail times anyway, but there is an absolute need, I believe, that we reserve the discretion to our judiciary to impose the proper sentences, both short term and long term, and leave that within their hands.

[The Chair, Conservative, Ed Fast]

Thank you.

We'll move, then, to call the question on unamended clause 15. We will have a recorded vote.

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

Since there is no amendment to be voted on, I suggest that we vote a block of clauses.

[The Chair, Conservative, Ed Fast]

Mr. Comartin has named a number of clauses that he doesn't want to do by block. We have those here, and as soon as we can, we'll group them.

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

Fine.

[The Chair, Conservative, Ed Fast]

We have a recorded vote, Madam Clerk, please go ahead.

For the record, Mr. Petit said yes. He said no and then changed it.

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

On a point of order, Mr. Chair, I propose that we adopt a motion that we unanimously agree to let Mr. Petit change his vote.

[The Chair, Conservative, Ed Fast]

Mr. Comartin moves that we allow Mr. Petit to change his vote from non to oui. Does everybody agree?

(Motion agreed to)

(Clause 15 agreed to [See Minutes of Proceedings])

(Clauses 16 to 19 inclusive agreed to: yeas 10; nays 1)

(On clause 20)

[The Chair, Conservative, Ed Fast]

Mr. Comartin wants to speak to clause 20.

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

I'm okay for the next clauses 20 to 30 going as one, but I have two questions of the staff.

First, Ms. Morency, most of these are sections that we're including. Can you explain--I just want this on the record--what we're doing from clause 20 through to clause 27?

Second, in clause 29, we're listing Bill C-16, which is yet to come. If that title changes, what do we then do? Do we have to retroactively amend this legislation?

[Carole Morency]

I'm sorry. Was your last question about clause 29 with the coordinating amendment with Bill C-16?

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

Yes, if the title changes.

[Carole Morency]

Okay. Now I understand. Sorry. It's changed now when it comes forward....

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

Yes.