Evidence of meeting #14 for Justice and Human Rights in the 41st Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was clause.
A recording is available from Parliament.
Conservative
Conservative
The Chair Conservative Dave MacKenzie
I can take less of a break. There was a request for 45 minutes.
Conservative
The Chair Conservative Dave MacKenzie
We'll call the meeting back to order.
I think, Mr. Harris, we're right about 30 minutes from when we broke, and I think you indicated you may have a comment or two here?
NDP
Jack Harris NDP St. John's East, NL
Yes. Thank you, Chair.
As I indicated earlier, I was going to look at the group of clauses between 137 and 166, for which there are no amendments, and all of which we are voting against. I won't refer to them all. These are what are known as consequential amendments that begin in clauses 137, 138, and 139, and refer to amendments related to the pardon issue and the imposition of record suspension into the Canadian Human Rights Act.
The effect of this is that the discriminatory practices, what they call the prohibitive grounds for discrimination, will continue to include pardon. However, as a result of the changes in this act, pardon does not have the same meaning. The only kind of pardon that the Canadian Human Rights Act now talks about is a pardon by royal pardon, or royal prerogative, which is essentially the Governor in Council—in other words, the state, not the Parole Board of Canada.
What's been added is “or in respect of which a record suspension has been ordered.” So the same protections for non-discrimination will be included in the Canadian Human Rights Act, but the word “pardon” is included with an entirely different meaning. I just wanted to point that out as a problem.
There's a whole series of other pieces of legislation that are referred to—the Contraventions Act. There's a whole series of matters in relation to the Criminal Code where this is mentioned. There's clause 141, for example, which changes the definition of pardon. This is the one I just referred to. The definition of pardon is changed to “a conditional pardon granted under Her Majesty's royal prerogative of mercy”. That's in the Criminal Code of Canada.
So what we're talking about here is that pardon remains in some sections, but it refers to a particular type of pardon granted by the royal prerogative, which I'm not aware, frankly, of any case in which it has been used in modern history. Somebody else might be able to enlighten me on that, but it's certainly not something that I'm familiar with the use of in Canada, so leaving it there is, in my view, just a bit misleading because of course pardons are not available as they were.
There's a whole series of other pieces of legislation that refer to pardons, which are also amended. There's an amendment to the National Defence Act, for example, in clause 152; there's a consequential amendment in that. This goes on to all of the Criminal Code matters, the DNA Identification Act in clause 148, the Immigration and Refugee Protection Act, the National Defence Act—as I pointed out before but also in clauses 152, 153, 154, and 155—and the Youth Criminal Justice Act is also amended. The name of the parole board is changed in one of these sections, but mostly we're dealing with transitional provisions related to record suspensions. And this goes on to clause 166, which is the coming into force.
We're opposed to all of these because they are the ones that set out the consequences of the changes from “pardon”, as it currently exists under the Criminal Records Act, to “record suspension”—a very regretful move being made by this government, and one that I think members opposite will also learn to regret when they see the consequences of it.
I frankly think there are an awful lot of people in this country who are going to be displeased with the fact that the notion of a pardon is missing from our criminal law, as is the sense of hope, I suppose, and encouragement that it gives to people to amend their conduct to become good citizens and to be treated in a way that says it's no longer in the interest of society to have that record hanging over their heads. It gives them an opportunity to reform their lives and to move on after paying their debt to society, as we pointed out.
I may be speaking for more than 10 minutes, but we're dealing with probably 40 clauses there, or maybe a little fewer than that. My stopwatch has run out of battery. It's only a 10-hour battery, and we've been here for more than 10 hours so far. I'll have to rely on the stopwatch the chair has. I'll take your advice into consideration when my time is running low, given the fact that we've also agreed to operate under good faith during these proceedings.
Having said that, Mr. Chair—and I don't think any of my colleagues have any comments—I would suggest we vote on clauses 137 to 166 as a block, if my colleagues opposite have no objection to that.
November 22nd, 2011 / 6:10 p.m.
Conservative
Conservative
The Chair Conservative Dave MacKenzie
We're dealing with clauses 137 through 166 in a group right now.
(Clauses 137 to 166 inclusive agreed to)
(On clause 167)
Now we're at clause 167. I believe the NDP have an amendment. Is it amendment NDP-49?
NDP
Jack Harris NDP St. John's East, NL
We are moving into the Youth Criminal Justice Act, Chair.
The first amendment we have is to clause 167, found on page 86 of the bill. That's a provision we're proposing to amend, if I can just find that page quickly.
NDP
Jack Harris NDP St. John's East, NL
Our amendment is to replace line 6 on page 87 with the following words:
(a) an offence committed intentionally or recklessly by a young person
That has to do with the definition of “violent offence”. Again, we had a significant expert opinion on that from Professor Nick Bala, for one, and from the Canadian Bar Association. They supported the notion of defining “violent offence” but said it should not include cases of endangerment without the element of intention or recklessness, as Professor Bala said:
to take account of the limited foresight of youth; the words “young person knows or ought to know would endanger the life or safety etc...” should be added.
So he proposed a different type of amendment, but what we are proposing here is the use of the words, “an offence committed intentionally or recklessly by a young person”.
The emphasis here was that there needs to be a recognition for violent offences, but the whole concept of the Youth Criminal Justice Act is to recognize that people who are subject to the act under the age of 18 have a limited or diminished foresight because of their youth. This has been demonstrated many times. The effect of this particular definition and the consequences, of course, are that more young people will be treated in a different way, by pretrial detention and other matters, by the use of “violent offences”.
Some of the commentary that was made has to do with the number of young people who Canada does incarcerate—as suggested by Professor Bala in his brief and his comments to the committee. We had a situation in Canada where, under the Young Offenders Act, we had one of the highest rates of custody for adolescents in the world. Even with the decline since the Youth Criminal Justice Act, the rates of youth custody in Canada remain much higher than some western European countries, as well as New Zealand. He presented some charts to show Canada's situation in that regard.
We don't have any more violent a society in Canada to justify that, and I think one of the big concerns here is that if there's an incidental endangerment that's not intentional, not caused by recklessness, that it should not be included in that particular offence.
We have two separate...we're on the same clause. On page 87 there's another, NDP-50, which is also an amendment to clause 167, line 12, which is of the same effect. I'll take advantage of the fact that I'm talking on this clause to deal with that as well, making a change by replacing line 12, as well as line 6, to include that element of intention or recklessness into the offence.
Having said that, Chair, unless my colleagues have something in addition to add, I'll leave it at that.
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
Thank you, Mr. Chair.
In response to my colleague's submissions regarding these amendments, I want to point out that, first of all, putting aside the question of whether or not a young person ought to go to jail, period—and I put that aside, because the sentencing provisions of the Youth Criminal Justice Act will still require that a youth justice court not impose a custodial sentence unless all other alternatives to custody have been considered—no one is going to go to jail unless all other alternatives have been considered.
The issue these amendments raise is whether or not this might be appropriate for a young person who has either caused bodily harm or has created a substantial likelihood of causing bodily harm and has done so negligently, maybe even persistently negligently or repeatedly negligently. Recklessness and intention, of course, are higher standards of culpability than negligence.
In my view, it is appropriate to allow a judge the discretion to consider a custodial sentence for negligent conduct when other alternatives have been considered and have been deemed by that judge to be inadequate. I know how much my colleagues opposite want to increase the discretion available to judges, so I would simply implore them to give the judge that discretion.
The reason I'm talking about sentencing is that it's really the main impact of this change. Violent offences are among those for which a judge is allowed to consider a custodial sentence.
Thank you.
NDP
Jack Harris NDP St. John's East, NL
Based on the new rebuttal...I hear what the member is saying. There is, as he knows, an offence of criminal negligence causing bodily harm, which is a separate offence. This is a different matter. As suggested by the legal experts, the mens rea involved in either intentionally or recklessly causing bodily harm ought to be a proper inclusion in the category of violent offences. But I hear what the member says. We obviously disagree on this.
Conservative
NDP
Jack Harris NDP St. John's East, NL
I guess we can deal with them together if we're ready to pass them together.
NDP
Jack Harris NDP St. John's East, NL
They're both the same. They're both to the same effect. They are just for different parts of the same clause.
Conservative
The Chair Conservative Dave MacKenzie
For clarification for the record, we're dealing with NDP-49 and NDP-50.
(Amendments negatived)
(Clause 167 agreed to on division)
(On clause 168)
Conservative
The Chair Conservative Dave MacKenzie
Clause 168 has a number of amendments from all three parties. I'm thinking that we should deal with them separately. The clerk tells me that they all deal with the same lines. They are somewhat different. So if one passes, it blocks the other two or three behind it, whatever the case may be.
NDP
Jack Harris NDP St. John's East, NL
May I suggest, Chair, that we deal with them together in terms of debate and then vote on them separately?
