Justice Committee on Feb. 28th, 2011

[The Chair, Conservative, Ed Fast]

I'll call the meeting to order. This is meeting number 50 of the Standing Committee on Justice and Human Rights. For the record, today is February 28, 2011.

All of you have the agenda before you. We're dealing with two different bills.

First of all, we'll complete clause-by-clause review of Bill C-54, which we started before the break. Once clause-by-clause is completed, we'll continue our review of Bill C-4, An Act to amend the Youth Criminal Justice Act and to make consequential and related amendments to other Acts.

We have with us a number of witnesses.

From the Department of Justice, and standing by to help us, we welcome back Carole Morency, acting general counsel, criminal law policy section, as well as Matthias Villetorte, who is also counsel with the criminal law policy section.

When we last adjourned, we had completed discussion of an amendment to clause 3, which was negatived. We returned to clause 3. There was some debate that took place about clause 3. I'm wondering if there is any further debate on clause 3 before I move to the question.

Mr. Comartin.

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

Are we still doing a vote on each one?

[The Chair, Conservative, Ed Fast]

I believe we had a discussion that grouping would be permitted. We're going to do a recorded vote, but I understood that after Mr. Petit had raised some objections, he agreed that we could group clauses that aren't contentious--

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

There are any...?

[The Chair, Conservative, Ed Fast]

--or clauses upon which there's no desire to have further debate.

Is there any other discussion? We're on clause 3 right now.

Then I'll move to the question: shall clause 3 carry?

(Clause 3 agreed to: yeas 10; nays 1)

You'll note that for the next four clauses, there are no proposed amendments; that is, for clauses 4, 5, 6, and 7. Is it your will to group those in one vote?

[An hon. member]

Oui.

[The Chair, Conservative, Ed Fast]

Seeing no objection, we'll do that, and I'll call the question on clauses 4, 5, 6, and 7. Shall those clauses carry?

(Clause 4 to 7 inclusive agreed to: yeas 10; nays 1)

So clauses 4, 5, 6, and 7 carry, and now we move to clause 8.

(On clause 8)

We have a Liberal amendment.

Mr. Lee, do you want to present that amendment?

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

Mr. Chair, I drafted the amendment because on my reading of paragraph (d) I found the wording arguably too vague, from two perspectives. One was the wording of the code itself, the actual wording of the provision. Secondly, in the hands of a court later, would the wording give rise to other potential ambiguity or vagueness there? I think members would accept that a material vagueness or ambiguity, either in the statute or in the court orders that would flow from it, would undermine the enforcement and the viability of those.

I was looking for greater precision in the order. Right now it reads “using the Internet or other digital network”. When you think about it, there are hundreds and hundreds of digital networks surrounding us. We're probably surrounded by half a dozen now as we sit in this room. Our automobiles are digitally network-connected. Our transportation is. Our heart monitors probably are. Our home burglar alarms are. It goes on and on. Our office communications systems are. Our telephones are. The list can go on.

I just found this much too vague. If a court were to adopt the wording here.... For example, if the court says “I'm ordering that you be prohibited from using the Internet or any other digital network for two years”, what would that mean to an offender when it came to enforcement? It could apply to any digital network.

I'm not saying that a judge is going to do that, but a judge could. If this is the wording of the code, a judge could simply take the wording of the code and use it in an order. We'd have all kinds of potential litigation about what networks should be included and what should not.

My amendment simply adds the words “specified by the court” after the term “digital network”. If an individual is going to be prohibited from using or relying on—even if it involves saving his own life—a digital network, the court must specify which digital networks are going to be prohibited. That's all my little phrase does: it attempts to force the code and the court to be specific and to specify.

[The Chair, Conservative, Ed Fast]

Thank you, Mr. Lee.

Now, first of all, before we move on with some debate on that, you may have noticed that amendments Liberal-1 and Liberal-3 are linked; they're similar. They deal with a similar issue. Unfortunately, in committee the chair has no authority to group amendments for debating and voting purposes, as the Speaker does at report stage.

Committees consider amendments one at a time and proceed in their examination of the bill from clause to clause. A dilemma exists when an amendment has consequential relationships with other amendments. If the committee is to take consistent decisions on these amendments, the voting on one ought to be linked with the others. The problem is that the clause may not be open yet for discussion.

A practical solution that has been followed by the chair in the past is to make a statement identifying those consequential amendments. What I'm suggesting is that if the first amendment, Liberal-1, is negatived, then the third amendment, Liberal-3, should also be negatived, as the committee has then already decided on the matter. If the first amendment is adopted, then the third amendment will be deemed adopted, as the committee is bound to take consistent decisions.

I need to have some agreement on how we're going to approach that. What is your will?

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

I'm okay with that.

[The Chair, Conservative, Ed Fast]

Mr. Lee is okay.

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

It's the same concept for both--

[The Chair, Conservative, Ed Fast]

The Bloc's okay with that. Mr. Comartin's okay. The government is okay with that.

Good, we have agreement on that. We're dealing essentially with LIB-1, but it also impacts LIB-3.

We'll go to Mr. Dechert.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Yes, thank you, Mr. Chair.

I would just like to ask the department officials for their comment on Mr. Lee's amendment.

[The Chair, Conservative, Ed Fast]

Ms. Morency.

[Carole Morency, Acting General Counsel, Criminal Law Policy Section, Department of Justice]

In response to one of my earlier appearances, I was asked to provide some information to the committee that provided an understanding and a definition of what was meant by the term “Internet or other digital network”. We did provide that information.

From that response, the committee will see that the language does have a consistent meaning and understanding in that it involves a network that is connected to another network for the purpose of communication. That additional part of the term, “other digital network”, was included to ensure that networks that are not based on the TCP, the protocol on which the Internet itself is run, would be caught too.

For example, in the 1990s, bulletin boards were commonly used and frequently accessed by individuals. That network does not run on that TCP, on that protocol, but if the operation of that network results in the same as with the Internet...in other words, if an accused can communicate with another person through that means for the purpose of facilitating their offending conduct, then the intention with this terminology in the bill before you was to catch that.

The suggestion was made that, for example, there are many other networks. I'm not a technical expert on this; I don't think, though, that the digital system that might operate a car in terms of its electronics constitutes a network in that sense. There may be, in a car, a network that communicates outside through communications, as in a phone or something else, but that would be certainly consistent with the terminology you have before you in Bill C-54.

So the language, in terms of specifying by the courts, would it have an impact...? The direction in Bill C-54 is consistent with what's in section 161 of the Criminal Code right now. In other words, it tells the court at the time of sentencing that it must consider imposing a condition. It has language to suggest to the court that it could use; it's not determinative of the issue, though, and a court is always going to be free to use the language there or put on other restrictions that are appropriate in the circumstance.

So if the words were not there, a court could still do it. If the words are there, it's further guidance to the court.

I would note, though, that there is a slight distinction between this amendment and the one under amendment LIB-3. It's because of the framing.... I know that the intention is to be the same, but it's the way the wording appears in amendment LIB-3 and the clause that it is purporting to amend. There is a reference to a court in amendment LIB-3, whereas the offence, the provision itself, is talking about the judge. So there is a distinction there that would technically be inaccurate from a drafting perspective, although I appreciate that the intention is to have consistent treatment.

[The Chair, Conservative, Ed Fast]

Mr. Dechert.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Ms. Morency, in your opinion, is the amendment that's being suggested here necessary?

[Carole Morency]

Well, as I say, I think the courts already take the guidance of what's in section 161 right now, use the language that's there, and tailor it as appropriate in the circumstances. So they're not constrained by the words on the paper. They may be able to go beyond that in the particular case. I would say that it has included the ability to do that, and that the terminology, “Internet and other digital network”, for the purpose of communicating, is also fairly clear.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Thank you.

Mr. Chair, it seems to me that it's a little interesting to note that typically the opposition members are telling us that judges should be given greater discretion and are actually, in most cases, in disagreement with the government's view that there should be mandatory minimum penalties in various parts of the Criminal Code because they feel that the courts properly and validly exercise their discretion on a regular basis. Yet in this particular amendment, it appears that the opposition would like to restrict the court's discretion.

My personal view is that this provision is meant to be part of a penalty that is imposed on a person who has sexually exploited a child. It's clear from the context that any Internet or digital network use that is being referred to as part of the conditional sentence on that individual is meant to refer to use of the Internet or a digital network in a situation that would potentially sexually exploit a child.

I think it's highly unlikely that any court in Canada would say to a convicted offender, “You can't set the security alarm on your home because that's a digital network and we don't want you to use digital networks”. It's obvious that the person was convicted because they had in fact sexually exploited a child using the Internet or other digital network, so this is simply a condition that will hopefully prevent them from doing that yet again.

For those reasons, I would urge the committee to reject this amendment.

Thank you.

[The Chair, Conservative, Ed Fast]

Thank you.

We have Ms. Jennings on the list, and then Mr. Lee again.

Ms. Jennings.

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

Thank you.

Maître, I'd like to know, just for better clarification, given the existing wording in the section of the Criminal Code that we're discussing today through the amendments in Bill C-54, does the amendment that my colleague Mr. Lee is proposing in any way enhance the legislation for the courts and for the judge? Does this make it any clearer, or is it redundant?

As the wording now stands, both in the Criminal Code and in Bill C-54's clause 8, it's worded well enough and is clear enough that it would allow a judge to limit, to specify, and to expand or not expand orders that he or she may issue to an offender in the sentencing. Does this enhance in any way or is it essentially redundant or not needed?

[Carole Morency]

I think there's one risk that occurs to me when I look at the language. If a court, at the time of sentencing, has in mind the Internet, we all have a common understanding of what that means, but if there are other networks that we don't turn our minds to because we don't think about them as distinct from the Internet.... In the undertaking, the example given would be a land area network that's just within a close geographic area.

If you don't specify that, then the question is, was the intention for that condition to apply to it? If the court only specifies “the Internet” because they don't know what other networks might exist, is there a bit of an opportunity to lose the benefit of the condition? I think there is a risk.

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

What I'm understanding from you is that this particular amendment, which Mr. Lee has presented, does not in any way enhance the authority of the sentencing judge and in fact might cause some unintended consequences should this amendment be adopted by this committee.

Is that correct?

[Carole Morency]

That's correct--