Evidence of meeting #25 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 amendment.
A recording is available from Parliament.
NDP
Jack Harris NDP St. John's East, NL
If I assault somebody, if I actually hit someone, I'm not guilty of assault if I'm acting in self-defence, so I'm not guilty of the offence.
Senior Counsel, Criminal Law Policy Section, Department of Justice
Right, but you have committed an assault.
Senior Counsel, Criminal Law Policy Section, Department of Justice
You're acquitted on the basis of a defence that exonerates you from an offence you have committed.
NDP
Senior Counsel, Criminal Law Policy Section, Department of Justice
I'm simply trying to illustrate that there is a bit of a paradox that I think is inherent in the language, no matter how it is drafted. If you take murder as the best example, you can claim self-defence to a murder charge and be acquitted, but it's quite clear that you have committed murder. You're just not guilty of the murder.
There are various levels that have to do with the finding that the elements of the offence have been proved beyond a reasonable doubt. Separate and apart from that is the question of whether you should be convicted. That's where the defence comes into play.
There is still an offence there. If there were not an offence, there would be no need for a defence.
Conservative
Robert Goguen Conservative Moncton—Riverview—Dieppe, NB
I won't repeat what Ms. Klineberg said. The starting point is that assault is an offence. Next, if certain factors are established, the assailant's actions may be defensible.
The premise whereby the assault is an offence is used to deter people, to preserve a certain degree of public order. In no way do you assault anyone, unless it is absolutely necessary. The basic principle is that assaulting anyone must be avoided. If, however, it is necessary, your actions may be defensible, in which case, the circumstances exonerate the assailant.
NDP
Françoise Boivin NDP Gatineau, QC
Is a boxing match, like the one we're going to see soon, considered an assault, but because it is in a certain context—it's consensual—it is not a...? I don't know what it is. That's what I'm saying.
Conservative
Françoise Boivin NDP Gatineau, QC
I understand the logic. I really do. I think it's just semantics. It's not meant to—
Conservative
Conservative
Robert Goguen Conservative Moncton—Riverview—Dieppe, NB
This is not consistent with the Criminal Code, and it's outside the scope of what we're doing.
Conservative
The Chair Conservative Dave MacKenzie
Please go through the chair so that we can have a record.
Go ahead, Ms. Klineberg.
Senior Counsel, Criminal Law Policy Section, Department of Justice
Where the words “the act that constitutes the offence” are employed, I think what the drafters were getting at was that it's the act that forms the subject matter of the charge.
Senior Counsel, Criminal Law Policy Section, Department of Justice
Right.
I'm sure that's the way the courts will understand it. I don't really see how a Canadian who picks up the law and reads it would be confused by what he's permitted to do or not permitted to do. The same goes for police officers applying this legislation to a particular situation.
It is just a little wording problem that's inherent where you have a defence for conduct. That is an offence, but the defence allows the person to be exonerated.
NDP
Jack Harris NDP St. John's East, NL
Madame Boivin raised the point of a boxing match, which we're about to witness a couple of weeks from now. It may be outside the scope of our discussion, but if we're talking about an offence, what's a boxing match if not an assault with the defence of consent? In that context, the offence of assault is being committed. The act that constitutes the offence is the assault that occurs in the boxing match. The defence is one of consent, so it's not an offence. That's the paradox you were talking about, Ms. Klineberg, and it's inherent in the concept before us.
You said it right. The act that forms the subject matter of the charge is what we're talking about. If the defence is present—and the assumption here in the clause is that the defence is present if the conditions are met—then why not call it “the act that would otherwise constitute the...” or “the act that constitutes the subject matter of the charge”?
I find it confusing. I have no doubt the courts will interpret it properly, but I proposed this amendment to try to clarify things and to avoid the paradox that you're talking about. I don't want to engage in an argument with you over it. I just wanted to make my points.
Conservative
Conservative
Kerry-Lynne Findlay Conservative Delta—Richmond East, BC
I just wanted to say that I think the wording, as is, is clear and simple. It's the end of the analysis, not the beginning of the analysis, that we're focusing on.