This week, I changed much of the tech behind this site. If you see anything that looks like a bug, please let me know!

Evidence of meeting #15 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 minimums.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

Catherine Kane  Director General and Senior General Counsel, Criminal Law Policy Section, Department of Justice
Philippe Massé  Director, Temporary Resident Policy and Program, Department of Citizenship and Immigration
Paul Saint-Denis  Senior Counsel, Criminal Law Policy Section, Department of Justice

3:35 p.m.

Conservative

The Chair Conservative Dave MacKenzie

Mr. Goguen.

3:35 p.m.

Conservative

Robert Goguen Conservative Moncton—Riverview—Dieppe, NB

We're going to speak to the minister and get a little bit more clarification. I wonder if this could be deferred until such time as we have a clear indication of what....

3:35 p.m.

NDP

Jack Harris NDP St. John's East, NL

We could suspend for the consideration of it. I'm just a little concerned here because we're not going to have a meeting tomorrow. Our next meeting will be Tuesday. If they want to stand down for five minutes while the minister is conferred with or the minister's office is conferred with, I'd be happy to do that, but we can't do both.

3:35 p.m.

Conservative

The Chair Conservative Dave MacKenzie

Mr. Jean.

3:35 p.m.

Conservative

Brian Jean Conservative Fort McMurray—Athabasca, AB

I was going to mention, I don't know if we received the normal 48 hours' notice. Did we?

3:35 p.m.

Conservative

The Chair Conservative Dave MacKenzie

Yes.

3:35 p.m.

Conservative

Brian Jean Conservative Fort McMurray—Athabasca, AB

When did we receive the notice?

3:35 p.m.

NDP

Jack Harris NDP St. John's East, NL

Monday night.

3:35 p.m.

Conservative

The Chair Conservative Dave MacKenzie

Monday.

3:35 p.m.

Conservative

Robert Goguen Conservative Moncton—Riverview—Dieppe, NB

The best that we've determined is that, yes, the minister would be willing to appear, but also there were presentations done by court administration and prosecution services, so officials from both of these arms would have to appear as well.

3:35 p.m.

Conservative

The Chair Conservative Dave MacKenzie

Mr. Harris.

3:35 p.m.

NDP

Jack Harris NDP St. John's East, NL

As long as it's the minister.... I don't care who he brings with him, as far as I understand.

3:35 p.m.

Conservative

Robert Goguen Conservative Moncton—Riverview—Dieppe, NB

So we would support it.

3:35 p.m.

Conservative

The Chair Conservative Dave MacKenzie

Okay. The motion is then presented.

(Motion agreed to)

Mr. Cotler indicated....

3:35 p.m.

Liberal

Irwin Cotler Liberal Mount Royal, QC

Yes. Thank you, Mr. Chairman.

As I mentioned to you, I have what might be called, I hope, a friendly precautionary point of order arising from the discussion that took place yesterday, and it was actually during a part of the discussion that I had to be in the House, so before we return to our clause-by-clause review I'd like to reference it.

I believe it arose in part because one of the witnesses innocently, though somewhat maybe incorrectly, contributed to the deliberations leading to an outcome that I think this committee should appreciate in a certain way. I ask the indulgence of all parties because I know that the sequence is out of place with our plan for today, but I'm bringing it up at the outset now so that if there is some merit to what I am saying, members can consult with whomever they wish during the course of the day, during the break, and maybe at the end of our deliberations we can in fact act on it.

The problem, as quickly as I can illustrate this, Mr. Chairman, arose in yesterday's discussion of clause 103 on page 59, wherein the English version says, “sexual exploitation of a person with a disability” and the French says

"personnes en situation d'autorité"

I know this was discussed yesterday, but the problem we have, Mr. Chairman, is that on page 102 of the bill, which is schedule 2—and we have yet to get there, so I'm doing this by way of anticipation, but it connects—the English refers in the same way to the section of the Criminal Code in section 153. But in referring to the same section of the code in French, it says

"personne qui est en situation d’autorité ou de confiance vis-à-vis d’une personne ayant une déficience"

In other words, the French is clearly different in the French text later on in this same bill.

I realize, as it was pointed out yesterday, Mr. Chairman, and I sought to follow it carefully, that these are section headings and that they themselves have limited juridical application by virtue of the Interpretation Act, as my Conservative colleague correctly pointed out yesterday.

We cannot have really two different ways of interpretation in English and French in this manner. Either the English is inaccurate or the French is inaccurate, and either it is wrong in one section or both.

I would like the government to look into this and decide which wording it finds acceptable, so at least we may report a version of the bill without an internal inconsistency in the bill.

Mr. Chairman, this is where I must bring up the issue of what was said yesterday during the discussion by one of the witnesses. My colleague from the NDP, Madam Boivin, stressed that it was important to have the English and the French match. Mr. Jean and others pointed out, correctly again, that we can't change the Criminal Code and that is not the legislation before us.

However, the comments from the witness, and again I know that it was meant and stated in an inadvertent contributory manner, implied that we couldn't in our reference to it change the text used to refer back to the section of the Criminal Code in question, in this case section 153, or, in other words, the impression that members may have had—and it would be the kind of impression one could have—was that these margin notes were phrases fixed in the Criminal Code, and that we were stuck with them as they were, and that was because the Criminal Code was not before us.

Mr. Chairman, herein lies the problem. Subsequent references to section 153 in the Criminal Code itself, in French, all of which use the same English as we have, use a different French than we do, namely the words as I said,

"exploitation d'une personne handicapée à des fins sexuelles"

It is a different French from the one we have. As such, Mr. Chairman, the witness may have been incorrect in implying to the committee that such phrases are set in stone, that they are frozen in the Criminal Code, and that therefore Madam Boivin was incorrect to suggest that we change the French to accommodate the reference in English to section 153.1 of the Criminal Code. Indeed, if Madam Boivin succeeded in changing the reference in French from

"personnes en situation d'autorité" to "exploitation d'une personne handicapée à des fins sexuelles",

the bill would in fact be more consistent with what is now in the Criminal Code already, and such a change would not only be completely permissible but I would say desirable.

Mr. Chairman, let me be frank. I doubt that even if Madam Boivin had put forth her amendment it would have succeeded in the manner in which we are proceeding on the votes, but the government may want to consider this as we near the end of our study.

I looked at this last night. I looked at both the English and the French, and I was asking myself why there is such a large difference between the margin notes for section 153.1 in English and in French. I want to suggest to you, Mr. Chairman, and to the committee that the reason is that in English one casts it in the language of the victim and in French one casts it in the language of the accused. This need not be problematic in and of itself.

While I think generally the Department of Justice might move to reform and consolidate the Criminal Code and remove such seeming discrepancies, we should ask ourselves today whether we can make a decision on how to eliminate this inconsistency with respect to the two English references in our bill and with respect to the two references in French in our bill, and of course between the then discrepancy between the English and the French.

In conclusion, Mr. Chairman, I don't think there needs to be disagreement on this point. When we break later for dinner, for example, I'd be happy to informally discuss this. I know it's difficult to understand all that I’ve now said because it may involve some sort of technical appreciation and referencing and going back and forth.

The only point I would like to make is that it would seem to me that it would make sense to align the two English references to section 153.1, which speaks of “sexual exploitation of person with disability”, with the French use,

"exploitation d'une personne handicapée à des fins sexuelles",

which reflects the language found in at least three different places elsewhere in the Criminal Code. It's not as if it's frozen in the Criminal Code, as we now have read it in section 153.1, and it can't be changed because the other references in the Criminal Code change the language in a way that allows the making of a uniform application of both.

I would say it's within our scope to make this change, and I'd like us to at least have consistency between the two references to the same section in French and in English, and to have the committee be aware that we do have the authority to select this wording, and that when we report it out we could have a consistency between the English and the French, Mr. Chairman.

3:45 p.m.

Conservative

The Chair Conservative Dave MacKenzie

Thank you, Mr. Cotler.

Mr. Goguen.

3:45 p.m.

Conservative

Robert Goguen Conservative Moncton—Riverview—Dieppe, NB

Mr. Cotler brings up some valid points, and certainly we'll take them under advisement, but we don't propose to deal with them at this stage of the proceedings. Certainly we have dealt with that earlier, and it's not to say something may not come of it. We'll examine it certainly in detail, but we have to pass the remainder of the clauses that have not yet been reviewed, and there are a number of them that may be somewhat lengthy.

3:45 p.m.

Liberal

Irwin Cotler Liberal Mount Royal, QC

Mr. Chairman, I agree. I'm not saying that we should deal with it now. My whole point was just that we should be aware of it now so that we might think about it during the day, because there are some things that I raise that may not be as clear as they could be when one has a chance to look at it and discuss it, and over dinner sometime I'd be open to any type of further sharing of this.

3:45 p.m.

Conservative

Robert Goguen Conservative Moncton—Riverview—Dieppe, NB

Mr. Cotler's points are well taken. Thank you.

3:45 p.m.

NDP

Jack Harris NDP St. John's East, NL

I have no problem with it, other than obviously that we didn't have the full information last day, but we think the focus today is on the remainder of the bill.

3:45 p.m.

Conservative

The Chair Conservative Dave MacKenzie

Ms. Kane.

3:45 p.m.

Catherine Kane Director General and Senior General Counsel, Criminal Law Policy Section, Department of Justice

If it's helpful to the committee to know this, we did follow up with respect to that issue of yesterday. We spoke to our legislative drafters. I can provide you with a little bit of information now that might be of assistance. But as Mr. Goguen says, we will follow up on this and ensure that when the opportunity arises, the proper versions can be changed, if that's possible.

I would like to reiterate, though, that legislation is drafted in English and in French separately; one is not a translation of the other. This provision in clause 103, referring to the sexual exploitation of persons with disabilities, was enacted in 1998. The marginal notes that were included in the French and the English versions, as noted by Madame Boivin yesterday and Mr. Cotler today, basically take differing perspectives. One describes it from the perspective of the victim and the other from that of the offender.

That is the way the marginal note appears in the Criminal Code now and has since 1998. That is the way that Parliament enacted it then. The marginal note does not provide part of the interpretation for the provision; it's the offence, and the offence is indicating the exact same elements in English and in French. They're not a direct translation of each other but contain the exact same provisions.

We are not able to change the reference in this bill as it refers to that in the Criminal Code, because that is what the Criminal Code says in the marginal note. If we had an ability to change the marginal note in the Criminal Code in another statute, our drafters have indicated that we would have to be amending that provision; we can't simply amend the marginal note. We would also have to go through and determine where else that provision had been referred to with the same marginal note in brackets in both languages. We would have to do a more thorough examination of where that provision appeared.

The other thing I would note is that to our knowledge, the fact that it's characterized one way in the French version and another in the English in the marginal note has not caused any problems of interpretation. None has been brought to our attention.

Concerning Mr. Cotler's point with respect to how that same provision is referred to in the schedule, relating to what was previously Bill 23-B, in our view it probably could be corrected, because that is not the way the Criminal Code refers to that provision. For internal consistency, it may well be possible that the French version could line up with the other French version as noted in clause 103, for the sake of internal consistency.

I realize this doesn't address your primary concern about the two languages taking a different perspective in the marginal notes, but it would address the internal inconsistency.

3:50 p.m.

Conservative

The Chair Conservative Dave MacKenzie

Thank you, Madam Kane.

Madame Boivin.

November 23rd, 2011 / 3:50 p.m.

NDP

Françoise Boivin NDP Gatineau, QC

I will be brief, because I just want to correct one thing Mr. Cotler said earlier.

In fact, we were not discussing the substance and we did not propose one option rather than another to the committee. We simply pointed out the error that seemed to us to be obvious, this inconsistency between the language versions, but we did not choose an option. We did not suggest one solution rather than another. What we did was try to see whether we could not immediately correct something that seemed to present a problem and see which side to come down on.

I also did a little research last night and confirmed that this had not actually had any consequences. In fact, it was the first time someone had noticed it. I do note that you are going to take the action that may be required in the necessary context.

3:50 p.m.

Director General and Senior General Counsel, Criminal Law Policy Section, Department of Justice