Justice Committee on Feb. 6th, 2013

[Carolyn Bennett, Liberal, St. Paul's, ON]

There is an application of extraterritorial jurisdiction for these new offences. If somebody is caught in Canada and the act was actually done in another country, could you let the committee know how Canada determines whether you prosecute here or extradite?

[Donald Piragoff]

The extradition is dependent on the other country making a request. That's the first issue. It's really not our decision until the other country makes a request to extradite.

Whether we extradite or we prosecute domestically is a question of essentially which jurisdiction has the best evidence, the most interest in the prosecution, and the greatest likelihood of a successful prosecution. Those factors would come into effect when an extradition request had been made and the individual was also present in Canada. We would have jurisdiction as a result of an extraterritorial provision similar to what is in this bill.

Those are the kinds of factors that are considered in the decision-making process.

[Carolyn Bennett, Liberal, St. Paul's, ON]

The present wording of the section says that an offender would retain normal eligibility for parole pursuant to paragraph 745(d). Is there an expectation in the range of incarceration the minister expects as a standard for these offences?

[Donald Piragoff]

No. There's a maximum, which is life. It's really up to the courts, depending on the circumstances of the case and the circumstance of the offender, to fix an appropriate sentence.

[Carolyn Bennett, Liberal, St. Paul's, ON]

Do you mean the judges would get to decide?

[Donald Piragoff]

That's what they get paid for.

[Carolyn Bennett, Liberal, St. Paul's, ON]

That's what I thought too.

Maybe somebody else will pick this up, but in terms of the military exemption, I think that some people have some concerns as to how you determine whether a particular act is or is not in accordance with customary international law. Would a judgment by the ICC be considered binding on our courts?

[The Chair, Conservative, Mike Wallace]

Do you have a quick answer to that question?

[Donald Piragoff]

Bindings of other tribunals are not binding on Canadian courts.

Canadian courts are sovereign. They determine the applicability of Canadian law, depending on domestic law. They will look at international judgments, or even judgments of other courts in other countries, for guidance and wisdom, but they are sovereign in terms of applying and interpreting Canadian law.

[The Chair, Conservative, Mike Wallace]

Thank you very much.

Our next questioner is Madam Findlay of the Conservative Party.

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

Thank you.

I have some points of clarification arising out of Ms. Bennett's questions.

In Canada, when prosecutions proceed because of offences against our Criminal Code, the Minister of Justice does not prosecute those himself, does he?

[Donald Piragoff]

No. The minister is not the Attorney General for the provinces, although he is the Attorney General for the territories.

However, this bill, like the Anti-terrorism Act, provides for a concurrent jurisdiction, whereby either the Attorney General of Canada or the Attorney General of the province has jurisdiction to prosecute.

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

The normal system is that crown counsel, either federal or provincial, deal with the evidence brought to them through law enforcement and then recommend whether or not to proceed. Isn't that correct?

[Donald Piragoff]

That's correct.

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

Mr. Koster, when you were talking procedurally about how you went about getting provincial input on this bill, you said it was done at a senior official level. That is quite a common practice in developing legislation, is it not?

[Greg Koster]

Yes, it is.

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

When the minister and his provincial counterparts meet, which they did quite recently, they talk in broad principles about areas they'd like to pursue or cooperate on, but when it comes to legislative initiative and the drafting of legislation, that would be done at a senior official level. Correct?

[Greg Koster]

Yes, that's correct.

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

Thank you.

With respect to the setting of both maximum and minimum penalties in our Criminal Code, our independent judiciary has the ability to set sentences within those parameters. Is that not also correct?

[Donald Piragoff]

That's correct.

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

This government has brought in several pieces of legislation that call for new mandatory minimum sentences, but in fact, when the Conservatives came into power in 2006 and formed a government, there were already mandatory minimum penalties for certain offences in the Criminal Code. Is that not right?

[Donald Piragoff]

There were 40-something offences that had mandatory minimum penalties, I believe, prior—

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

So some 40-plus offences within the Criminal Code of Canada already carried mandatory minimum penalties before the Conservative government was formed in 2006.

[Donald Piragoff]

Yes.

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

You're confirming that.