Justice Committee on May 8th, 2013

[Some hon. members]

Agreed.

[The Chair, Conservative, Mike Wallace]

Clause 1 is back on the floor. I will give you the floor.

(On clause 1)

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

I will ask the expert, Mr. Taylor, to comment and explain the rationale.

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

Thank you. I think the rationale is fairly self-evident. We have ongoing litigation, as you've alluded to, before the Supreme Court of Canada. I guess one of the facts of passing legislation that would amend the Criminal Code in a way that would touch upon a provision that is currently the subject of constitutional litigation would be that if the legislation were found unconstitutional, the provisions that Parliament had chosen to amend would no longer have any force or effect.

It's obvious what the implications might be. The discretion ultimately rests with Parliament, though, in terms of what it chooses to do.

[The Chair, Conservative, Mike Wallace]

Mr. Seeback.

[Kyle Seeback, Conservative, Brampton West, ON]

I understand that. So if it's ruled unconstitutional by the Supreme Court, then we have a section of this bill, an amendment to the Criminal Code, that's unconstitutional.

But what happens if the Supreme Court rules that it's constitutional and we've taken this out? Is there an ability to put it back in? I don't see how there is. It would have to be another private member's bill, or something like that. Is that my understanding?

[Matthew Taylor]

I think you're right. If you choose to take it out and it's found to be constitutional, then the opposite holds true. If you haven't passed legislation, then obviously this type of provision wouldn't exist in the Criminal Code. At some point, were the government or a private member interested in seeking amendments to the Criminal Code to allow for that kind of reform, then that would be a decision they would have to take.

[The Chair, Conservative, Mike Wallace]

Thank you very much.

Madame Boivin.

[Françoise Boivin, NDP, Gatineau, QC]

Here's how I see things. When I mentioned the decision in the Bedford case, I simply wanted to argue that our whole debate on section 1 may have been pointless, since we don't know what position the Supreme Court will adopt. The amendment proposed in Bill C-452 does not affect the correction the trial judge asked parliamentarians to make. It was not related to types of sentences, but to the offence itself. I think that's more or less applicable.

However, I am always somewhat reluctant to amend a provision that has already been submitted to the courts. We may want to err on the side of caution and wait for the Supreme Court's ruling. I have no problem with that approach. However, I fully support the proposed amendment to section 212 of the Criminal Code concerning sentence types, provided that it is considered constitutional.

It's simply a matter of delaying the process. Mr. Seeback is right. If the Supreme Court concludes that those provisions are entirely constitutional, the issue will come before us again and we will have to consider it once more. Perhaps someone else could propose an amendment. Even the government could do that, since it really seemed to support this bill.

[The Chair, Conservative, Mike Wallace]

Thank you.

Mr. Goguen, go ahead.

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

In essence, this may or may not be problematic, but it would be totally disrespectful to substitute our decision with the Supreme Court of Canada, with this being in play.

As Madame Boivin quite rightly said, it doesn't shut the door forever, we can come back to it. We'll be respectful of the Supreme Court of Canada, and deal with the issue as need be, depending on how they decide the Bedford decision.

[The Chair, Conservative, Mike Wallace]

Thank you.

Mr. Albas.

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

Thank you, Mr. Chair.

I'm going to agree with the parliamentary secretary. I think it's undesirable to proceed at this time, in this particular set of circumstances.

Thank you.

[The Chair, Conservative, Mike Wallace]

Madame Sgro.

[Judy Sgro, Liberal, York West, ON]

Mr. Taylor, would it not prejudice the decision if this had royal assent prior to the Supreme Court making a decision?

[Matthew Taylor]

I don't know if it's fair to say that it would prejudice the decision. The interplay between Parliament and the Supreme Court, I think, is well known. You as parliamentarians have the ability to enact legislation as you see fit. I would suggest that were you to pass an amendment of this nature, the parties would notice that, if it had occurred prior to the case being heard by the Supreme Court.

I don't think it would go unnoticed.

[Judy Sgro, Liberal, York West, ON]

It would influence it, yes.

[The Chair, Conservative, Mike Wallace]

Thank you very much.

Is there any other discussion on clause 1, now that it's back on the table?

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

The motion would be to strike it, then.

[The Chair, Conservative, Mike Wallace]

Yes, if you vote against it, you strike it.

(Clause 1 negatived)

(Clause 4 agreed to)

(On clause 5)

[The Chair, Conservative, Mike Wallace]

Clause 5 has a government amendment, G-4.

I'll turn it over to the parliamentary secretary, if he would like to introduce his amendment.

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

Thank you, Chair.

We propose that clause 5 be amended.

This clause proposes to modify the provisions that impose a reverse onus for forfeiture of proceeds of crime for certain designated offences, to apply also to procuring and trafficking offences. The Criminal Code currently provides for forfeiture of proceeds of crime as part of sentencing, upon application by the crown, after conviction for a designated offence.

Where an offender has been convicted of certain serious offences, the offender is required to prove that their property is not proceeds of crime. This means that a reverse onus is imposed on the offender. Our proposed amendments would make the reverse onus for forfeiture of proceeds of crime apply only to trafficking in person offences.

One of the procuring offences, paragraph 212(1)(j), living on the avails of prostitution, is currently subject to the charter challenge, Bedford versus the Attorney General of Canada, which is currently before the Supreme Court of Canada. It's expected to be heard in June 2013, and the amendments to any of the provisions impugned by this case should await the Supreme Court's decision on the constitutionality.

[The Chair, Conservative, Mike Wallace]

Thank you.

Madame Boivin.

[Françoise Boivin, NDP, Gatineau, QC]

I was glad to see that the government had considered the decision in the Bedford case regarding clause 5. However, I was surprised to see that it had not done the same with regard to clause 1, but I guess that's okay.

[The Chair, Conservative, Mike Wallace]

Madam Sgro.