Justice Committee on March 8th, 2012

[Jack Harris, NDP, St. John's East, NL]

I agree with my colleague Ms. Findlay.

On the idea of expecting “relationship” to be stretched, especially when the clear intention here is to have a clause aimed at what we're calling the battered spouse syndrome, I think having interaction and communication as a separate item really ensures that we don't confuse the two. It's a non-exhaustive list, but I don't think it hurts to mention that, because people increasingly use the Internet to threaten or harass or do that sort of thing. That's a communication. You'd hardly call it a relationship, but it is obviously important.

I think adding that doesn't do any harm, and it certainly can't take away from what, generally speaking, we're intending in the previous clause.

[The Chair, Conservative, Dave MacKenzie]

Thank you.

Go ahead, Mr. Cotler.

[Irwin Cotler, Liberal, Mount Royal, QC]

It has just been proposed to use that statutory language “for greater certainty, but not so as to restrict the generality of the foregoing”.

[An hon. member]

Well said.

[The Chair, Conservative, Dave MacKenzie]

Thank you.

Go ahead, Mr. Jean.

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

That's what I was going to suggest as well, Mr. Cotler. Just so judges don't interpret it restrictively, I think that would be fair if it's a non-exhaustive list.

I'm wondering if the officials could comment on that.

[Catherine Kane]

Is the question related to Mr. Cotler's suggestion?

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

Yes.

[Catherine Kane]

Do you mean “for greater certainty”? I don't really think that's--

[Irwin Cotler, Liberal, Mount Royal, QC]

As I said, that wasn't meant to be added. I was just explaining why I added it.

[Catherine Kane]

I think it would be understood that way, but we wouldn't want to add those words into the factor, because it's a non-exhaustive list of factors and we're not offering greater certainty to anything in particular. We're planting some guidelines in terms of what the factors are, but leaving it open to the courts to consider any that are relevant.

It's entirely up to the committee whether they want to add in the additional factor of the interaction or communication or leave it to be considered when it happens to be relevant in the circumstances that are presented.

[The Chair, Conservative, Dave MacKenzie]

Thank you.

Go ahead, Mr. Goguen.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

Not to reiterate what's been said, but the essential part of this section is focusing on the battered women syndrome. Where the elements are non-exhaustive, I don't think it detracts from it. If anything, it perhaps complements it.

[The Chair, Conservative, Dave MacKenzie]

Shall Liberal amendment LIB-1.1 carry?

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

(Amendment agreed to)

[The Chair, Conservative, Dave MacKenzie]

We're now on amendment NDP-6.

Go ahead, Mr. Harris.

[Jack Harris, NDP, St. John's East, NL]

This amendment is to delete lines 14 to 16 on page 2, which essentially is proposed paragraph 34(2)(g).

I raise this because it has been raised by one of our witnesses who was concerned that including this wording here may take away from the notion that proportionality may detract from the previous provisions of the existing self-defence provisions, which are provided specifically for the use of lethal force in certain circumstances that were specified in the old act.

It was urged upon us that putting this here would potentially limit or remove the protection that was in the existing Criminal Code. I was persuaded by that argument enough to put this forward.

I do want to hear what the officials have to say about it, because we're talking about lethal force and very extreme circumstances, clearly, when someone has lost their life, and we wouldn't want the inclusion of this clause to remove a defence that already existed in the law.

I know it's a somewhat rare circumstance and I'm not suggesting that we want to do anything that would give licence to people to use extreme force in the wrong circumstances, but I do want to see addressed the concern—I forget exactly which witness raised it; I don't think it was the CBA—that the inclusion of this as a specific factor would detract from the previous section that dealt with the use of lethal force and the response to grievous bodily harm or the threat of grievous bodily harm or death. That's the reason for it.

I think that the nature of the response to the use of threat or force is obviously going to be considered in any event. Obviously, that has to be considered because we are looking at the reasonableness of the act that was committed. In every circumstance, especially when we've now included the words “shall consider that”, it seems this could cause problems for certain types of cases.

[The Chair, Conservative, Dave MacKenzie]

Thank you.

Go ahead, Ms. Findlay.

[Kerry-Lynne Findlay, Conservative, Delta—Richmond East, BC]

Thank you. I do have comments, but Mr. Harris said he would like to hear from the analyst on it. I would like to defer my comment to hear their comments first.

[Joanne Klineberg]

I believe it was Professor Stewart, and also Mr. Russomanno, who pointed out the proportionality question. My understanding of what they were concerned about was the replacing of the idea of proportionality with the idea of reasonableness as the last factor in self-defence. In other words, proposed paragraph 34(1)(c) of the bill says:

the act committed is reasonable in the circumstances

whereas under the current law, that last element is typically formulated as a notion of proportionality between the threat you are trying to avert and the harm that you actually cause. They were suggesting that the ultimate determinant be proportionality, as opposed to reasonableness. I think they would say that it's certainly....

I'll backtrack for a second.

On Tuesday, we did discuss this issue. I had suggested that one of the reasons the new self-defence law is suggesting the concept of reasonableness as opposed to proportionality is that proportionality is not actually applied in a literal manner by the courts. The courts understand that in high-pressure self-defence situations, a person is not going to be able to exactly calculate how much force is the right amount, but not one ounce more. They give it a very broad and tolerant.... They call it the tolerant approach to proportionality.

The bill proposes to replace that with reasonableness, on the understanding that an act that is disproportionate to the threat can never be found to be reasonable. Reasonableness carries with it the flexibility the courts have had to give the notion of proportionality, because it's not built into the idea of proportionality. We think it's preferable to stick with reasonableness as opposed to proportionality as the requirement. When you get to the factors to consider, it's there where we would say that you want the proportionality between the threat averted and the harm caused to be looked at as a factor to consider in determining reasonableness.

There would be a great concern with removing that, because it is in all cases going to be one of the most important factors. It's just not framed as the requirement itself; it's more a factor to consider in determining reasonableness.

[The Chair, Conservative, Dave MacKenzie]

Thank you.

Go ahead, Ms. Findlay.

[Kerry-Lynne Findlay, Conservative, Delta—Richmond East, BC]

I would not support this amendment. I think proportionality is and should remain an essential element of self-defence. Again we're talking about this list of factors, and this amendment would take the nature and proportionality of the person's response right out.

It may no longer be the determinative factor, but as it is, it certainly would remain and ought to be considered in every case. To me it just makes common sense that you would look at the proportional reaction to the threat and how that was dealt with by the person. If it's deleted from the factors, it really removes it right out of consideration. I don't think that makes sense to me, so I would not support this amendment.

[The Chair, Conservative, Dave MacKenzie]

Thank you.

Go ahead, Madame Boivin.

[Françoise Boivin, NDP, Gatineau, QC]

It makes sense, what I am hearing right now. My sole question on proposed paragraph 34(2)(g) right now is this: how come in English there's an “and” at the end?

When I read proposed paragraph 34(2)(g), it's as if you are putting it in conjunction with 34(2)(h), unless it's me who's wrong.

[Jack Harris, NDP, St. John's East, NL]

It's because it's the second-last one. There may be a drafting error there.