Justice Committee on March 25th, 2013

[The Chair, Conservative, Mike Wallace]

Thank you, Madam.

This amendment is in order, just so the committee knows that.

Our next speaker to this amendment is Mr. Goguen.

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

It's pretty easy to grasp where Madame Boivin wants to go, and generally speaking she is not tardy in presenting these motions to us.

Schools and community centres certainly are part of the problem. But it seems to me that it's somewhat limited, and there could perhaps be more. Should it also be a church, or should it be a playground, or should it be a friendship drop-in centre? I get the sense of where it should be going, but it's pretty late in the game and I think it needs more research.

[The Chair, Conservative, Mike Wallace]

Mr. Mai.

[Hoang Mai, NDP, Brossard—La Prairie, QC]

Are you done, Mr. Goguen?

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

I'll share my time with Mr. Mai.

[Some hon. members]

Oh, oh!

[Hoang Mai, NDP, Brossard—La Prairie, QC]

I didn't mean it that way, but anyway....

Madame Boivin did mention the fact that we are being asked to present amendments before we actually listen to all the witnesses, but in this case, it was really specific. If you remember what the vice-president of the Winnipeg Police Association said, he said that if we start somewhere, at least it's a start, in the sense that if we don't go forward with this amendment because we say that there are other places we should put in here.... Again, he has mentioned that the criminals will go elsewhere, but I think this is a clear indication that it's where we should start.

I think Mr. Goguen did mention that he wants to have more research. If you look at the brief that the justice minister from Manitoba presented to the committee, you'll see that it is a very extensive brief. There's a lot of information, and there has been a lot of consultation, and that is specifically a requirement. It mentions schools, community centres, or clubs. That is one of the recommendations. I think a lot of work has been done by our witnesses. From what we've heard from people on the ground, I think this is the type of amendment that we should definitely support, because it would help on the ground.

I agree with Mr. Goguen in terms of timing and in terms of needing to do more research, but if you look at our schedule, having to vote on clause-by-clause right after listening to witnesses on a specific bill, I think that's where we have to react.

[The Chair, Conservative, Mike Wallace]

Thank you.

Madame Boivin, and then Mr. Seeback.

[Françoise Boivin, NDP, Gatineau, QC]

Thank you, Mr. Chair.

I understand what Mr. Goguen is saying. But one does not preclude the other. It doesn't remove anything from the bill. It adds something. I think it sends a message about the severity of the offences, which the bill's sponsor wants to do. In fact, all the witnesses we heard from are unanimous in that respect. Even those who favour prevention and education measures support this bill.

I would say this to him. You are right to question why it wouldn't include churches or other places, but all of that is provided for under subparagraph 718.2(a)(ii.1). The amendment wouldn't prevent that activity from being viewed as an aggravating circumstance, but it would certainly draw the judge's attention to the fact that it was done on the grounds of a school or community centre. I don't think you would want a six-month sentence. When it comes to recruiting gang members, everyone agrees that it's not so much a minimum penalty we're targeting as a severe one to eradicate this scourge.

Even if, today, we don't provide for all the places in which young people could be recruited in their natural surroundings, I don't want to get into using expressions such as “natural places where people congregate”, because that would be ridiculous. We know that subparagraph 718.2(a)(ii.1) exists. If it's obviously a school or a community centre, judges probably already take that into account. I even think judges do that now and take recruitment into account. All we would be doing is spelling it out more explicitly. That's perfectly in line with this whole approach. In other words, we're introducing some clarity around an existing Criminal Code provision and adding more severe elements.

[The Chair, Conservative, Mike Wallace]

Mr. Seeback.

[Kyle Seeback, Conservative, Brampton West, ON]

As Mr. Goguen said, I'm certainly sympathetic to the amendment. I wish I could have seen it before now. I understand the challenge. I know that when amendments are proposed I like to try to take the time to go through the Criminal Code to see what other implications there may be. All of us on this committee work very hard, but none of us are experts in the Criminal Code and how changes in one section can impact on other sections. That's my challenge.

Then, in terms of adding a new definition and at the last minute writing it by hand, as well-intentioned as it may be, I certainly don't know what the consequences of that will be or how it's going to be interpreted. I don't necessarily think we should be rewriting the Criminal Code at the last minute. That's my concern, but we have the benefit of Mr. Taylor being here.

I thought perhaps you could weigh in, Mr. Taylor, on what you think about both. There are almost two amendments: the original one and the handwritten add-in.

[Matthew Taylor, Counsel, Criminal Law Policy Section, Department of Justice]

Well, I guess I can provide you some context to help you in your decision-making process.

As you know, the courts will be able to take into consideration whatever factor they think is appropriate in terms of their jurisdiction to decide that something is aggravating in a particular circumstance, so there is that broad discretion on the part of the courts to begin with.

There are some questions that were raised in terms of scope, but you could ask those other questions in terms of whether it would apply in another context. This provision brings to my mind similar provisions in the Controlled Drugs and Substances Act, which previously dealt with making it an aggravating factor to sell drugs in or near a school—not only near a school, but in a school. Then it used a bit of a basket clause of any place where young persons are known to frequent—I don't have the precise language—and that was subsequently amended in Bill C-10 to turn that aggravating factor into a mandatory jail sentence. So that is an example in criminal law that is comparable to what's being proposed here, although it would be broader.

The other related point I'd say is that there is a provision, section 810.01 of the Criminal Code, which we call the peace bond, that deals with organized crime behaviour. Where it is believed that somebody is going to commit an organized crime offence, a peace bond can be ordered, including conditions to not frequent places where children may congregate. For example, if a police officer knows that a gang member or someone working on behalf of a gang is targeting young people, that type of tool can be used by the justice system to target the practice and prevent the individual from recruiting new individuals to join a criminal organization.

Those would be my general context comments.

[The Chair, Conservative, Mike Wallace]

The time is still yours.

[Kyle Seeback, Conservative, Brampton West, ON]

What you're saying, and this was precisely my concern, is that there are other sections in the Criminal Code—and I recall when we looked at some of those at this committee before—where the language is different. It has a similar idea, but the language is substantially different from what we're putting in place here. To me, it seems, therefore, that we're going to be leading to inconsistency in the Criminal Code when you're looking at aggravating factors for crimes against young people. Often judges will look and try to explain why there is inconsistency, which can lead, in certain circumstances, to what I believe could be bad law.

I think you're saying that this is similar, but not the same as what we've done before.

[Matthew Taylor]

Certainly, it's similar to other provisions. I wouldn't go as far as calling it inconsistent. I would say it's different in the sense that, for example, the reference to the Controlled Drugs and Substances Act is broader in application. So if this committee and Parliament were to adopt the language as proposed here, it would be taking a deliberate policy choice to limit this aggravating factor to these circumstances. That may have implications in terms of what a court might do in the future. They may, for example, say, “While Parliament has chosen to make this circumstance an aggravating factor, the fact that the recruitment took place at a shopping mall, for example, or inside a school, is not included; therefore, I won't take that into consideration as an aggravating factor.”

It's not inconsistent. It's hard to predict what the courts might do, but those are the implications of taking that decision, as I understand it.

[The Chair, Conservative, Mike Wallace]

Thank you, sir.

Mr. Albas.

[Dan Albas, Conservative, Okanagan—Coquihalla, BC]

Thank you, Mr. Chair.

After hearing what Mr. Taylor had to say, I'm especially leery about throwing this in. A judge may look at this and say, “Well, Parliament has weighed in, and it's specific to this.” A defence lawyer could easily argue that because Parliament did not include a Boys and Girls Club, because that would not be involved in here.... It doesn't say “club”, from my understanding of reading this—near a school or community centre. We heard from both Mr. Gill as well as from the Boys and Girls Clubs that this could be a potential tool they could use, but we may be limiting it needlessly.

Given the fact that we have to report back, I believe by mid-April, Mr. Chair—and this is an interesting conversation—I'm against putting these things in and creating inconsistency within the Criminal Code. We had a private member's bill previous to that where the NDP agreed with us that the inconsistencies were an issue. I just don't want to see those kinds of things go in.

That being said, Mr. Chair, I'd much rather see our amendments as presented go back to the House, rather than holding this bill up and then seeing all of our good work today go to waste. If it goes past that time, we don't have any recourse other than to submit them independently.

So, Mr. Chair, I will not be supporting the amendment.

[The Chair, Conservative, Mike Wallace]

Thank you.

Mr. Goguen.

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

I think it's all been captured. The idea is sound; it's just that there is discretion of the judge to probably take these factors into consideration. As it stands, it potentially narrows the scope of the judge's discretion to use an aggravating factor.

For that reason, I'll be voting against it as well.

[The Chair, Conservative, Mike Wallace]

Mr. Marston.

[Wayne Marston, NDP, Hamilton East—Stoney Creek, ON]

This isn't preventing them from doing further consideration of aggravating.... This is being specific to.... It says, “the court shall consider as an aggravating circumstance”, not “the only aggravating circumstance”. I don't see the concern for the limitation that I'm hearing.

I understand that people want to be very cautious, and I think we all should be. If it said, “the aggravating”, I would agree with you 100% on the spot, but it says “an aggravating circumstance any evidence establishing...committed against a person”. I don't see that as being quite as restrictive as you're seeing it. I just want to make that point.

[The Chair, Conservative, Mike Wallace]

Thank you.

Madame Boivin.

[Françoise Boivin, NDP, Gatineau, QC]

Thank you, Mr. Chair.

Mr. Taylor, if we said, “shall consider as an aggravating circumstance, among other factors, any evidence establishing that the offence was committed against a person under the age of eighteen years near a school or a community centre”, it wouldn't be limited, but would still serve as an indication.

I would hope that those across the way agree that engaging in criminal organization recruitment near a school or community centre constitutes an aggravating circumstance. I gather that people don't want to limit it and give courts the impression that it wouldn't apply to a Boys and Girls Club, for example. I think people should avoid the temptation to reject the amendment simply because it comes from us. As I see it, the person who introduced the bill did so specifically to set out recruitment as an offence. We're adding a minimum sentence to send a pretty important message in cases where minors are being targeted.

But I think we also need to send a message—and one does not preclude the other—that this form of recruitment constitutes an aggravating factor. That is strictly in response to what the committee was told. Manitoba's justice minister, for one, supports Bill C-394, which was sponsored by a government member, and we respect his opinion. In his view, recruitment is a problem. And the police have said so as well.

Does the expression “among other factors” remove the limiting aspect? From your comments, my understanding is that it isn't inconsistent with what the Criminal Code already says. And, for our colleagues across the way, that's the only thing being considered. We still have time, since it's likely the only amendment left in our study of this bill, which is otherwise moving along swiftly.

In light of that, I don't think we can be opposed to the principle. It would address their concerns.

[Matthew Taylor]

Just to pick up on a few things, certainly it wouldn't be inconsistent. It would provide greater clarity to the courts if you had that type of language; this is one factor among any number of factors that a court can take into consideration.

I think that kind of language would anticipate some of the concerns that might be raised in court by a defence lawyer, that because Parliament has not specifically enumerated these types of factors, by consequence they don't want that to be taken into consideration. That type of language provides that kind of a signal to the court that this is one of any number of factors.

[Françoise Boivin, NDP, Gatineau, QC]

I would like to move a subamendment, adding the words “among other factors”.