Evidence of meeting #4 for Justice and Human Rights in the 41st Parliament, 2nd Session. (The original version is on Parliament’s site.) The winning word was victim.
A recording is available from Parliament.
9:50 a.m.
Conservative
9:50 a.m.
NDP
Françoise Boivin NDP Gatineau, QC
I always have a comment.
I appreciate the amendment. Honestly, you just saved us a lot of hours of writing stuff. Thank you very much.
I think everybody recognized the same problem with the way it was written, and the motioner, Mr. Warawa, was already receptive to the idea.
I think it's better written now, so that's excellent.
9:50 a.m.
Conservative
Kyle Seeback Conservative Brampton West, ON
I support the amendment, obviously. I think it does help.
But because I don't want to move on and miss my chance to speak, I'd add that my concern is what I raised during my intervention with respect to our amendments to subsection 161(1), in that we don't have anything in the legislation that would require a judge to give reasons, oral or otherwise, if they chose not to impose a geographic restriction. To me, this is one of the very important elements of this legislation.
I'm concerned that we're going to miss something by not looking at some kind of amendment. I've created my own amendment that I think would fill that gap, and I wanted the opportunity to discuss with Mr. Hoover whether or not it would be something we could consider. My view is that we want to get this legislation right. It's important. I don't think—
9:50 a.m.
Conservative
Kyle Seeback Conservative Brampton West, ON
You know, I don't think anyone is going to look at this section of the Criminal Code for a long time. Mr. Hoover, what I'm thinking is that if we were to add, in section 161, something to the effect that if the court makes a decision not to impose the prohibitions under subsection 161(1), it shall state the reasons for the decision on the record.
That mirrors the language we have in the other sections, not requiring it to be in writing, but addressing the issue that was raised by the witnesses who came on Tuesday, who said that if the geographic restriction were not imposed, not mentioned at all by the judge, then suddenly it's over and they're left standing there saying, “What's happened?”
Do you think an amendment along those lines would address those concerns?
November 7th, 2013 / 9:50 a.m.
Douglas Hoover
In the first place, if we look at how section 161 is currently structured, the court is required to consider all of those particular conditions in a case where the offender has been convicted of the prerequisite sexual offence against a child.
I think it would be highly unusual—I'm not saying it wouldn't happen, but it would be very unusual—for a court not to impose a condition and state why orally.
9:50 a.m.
Conservative
Kyle Seeback Conservative Brampton West, ON
It happened in the case of the witnesses who came to testify at committee.
9:50 a.m.
Douglas Hoover
Well, I have no knowledge of exactly what happened there. Again, I think mistakes are made in courts; that's why we have appeal provisions. I don't know if that's an appealable issue or not. Judges are human. But certainly, in my view and my experience....
Section 161 is designed to ensure that courts address these particular issues. Courts are very good at addressing them in general, certainly, and it would be very rare that they would make a mistake. In my view that would be considered to be somewhat inconsistent with how we would expect it to function in the courts.
That being said, again, in a rare instance it may happen that the court just neglects to impose a condition and not state on the record why they didn't do it. Would it make sense to require them to state on the record? I have to agree with the previous witness. I don't know that it would add a lot, and I think it may have a detrimental impact in the sense that when we start piling on requirements for a court to do this, this, this, and this, it can become confusing, and they spend more time checking the code and making sure they're within the scope of what they're required to do as opposed to exercising their discretion properly.
I'm not saying it's a horrible thing to do. We haven't really given it a lot of thought. When we were given the draft bill to review, we looked at what the bill does and where perhaps it needed some improvements for consistency and clarity. That wasn't one of the issues that we took a close look at.
All I can suggest is that I agree it wouldn't have a huge impact. Would the mistake possibly be made anyway, even if you had that amendment? And what would be the effect of the mistake, at the end of the day, if you had that amendment? What would the court do afterwards? I think it would be an administrative error, and there wouldn't be an appeal, although I suppose the victim could possibly try to press for an appeal of the condition.
I'm not sure what the effect would be.
9:50 a.m.
Conservative
The Chair Conservative Mike Wallace
Thank you very much.
I've allowed a little flexibility on this, but we are going to deal with amendment G-1. If you want to move your own amendment separately, you're entitled to as a member. Then we'll decide whether or not it's in order.
Monsieur Goguen, on G-1.
9:50 a.m.
Conservative
Robert Goguen Conservative Moncton—Riverview—Dieppe, NB
I raised my hand before Mr. Hoover completed his explanation. I guess in essence both he and Mr. Spratt are saying that the system works at 99%, and the amendment certainly wouldn't preclude a human error of omitting to state it in the record, so on the basis of not cluttering the code....
I appreciate Kyle's seeking to get it to 100%, but 99% is pretty good. So let's leave it at that.
9:50 a.m.
NDP
Françoise Boivin NDP Gatineau, QC
I tend to agree.
Also, on a point of principle,
It wasn't even in the initial bill. We just finished hearing from the witnesses. No one asked that question before the end. It would bother me a little to focus straight away on this issue without any details other than just Mr. Hoover's answer. His answer gives us the overall consequences of this sub-amendment, if there is a sub-amendment. It's a matter of principle. We already have to come up with amendments that are still within the scope of the bill, and if we also have to start cleaning up the entire Criminal Code as we do our study, we will never finish. For that matter, we too would have a lot of ideas about that.
I'll limit myself to what's before us. Otherwise, we might have to think about these issues even more before we open that door.
10:10 a.m.
Conservative
The Chair Conservative Mike Wallace
Thank you very much.
Is there anything further on amendment G-1?
(Amendment agreed to)
(Clause 1 as amended agreed to)
(On clause 2)
There is an amendment from the government side, G-2.
Mr. Goguen.
10:10 a.m.
Conservative
Robert Goguen Conservative Moncton—Riverview—Dieppe, NB
Clause 2 of the bill would require sentencing courts to impose, as part of all probation orders, mandatory conditions prohibiting an offender from communicating with a victim, witness, or other person identified in the order unless that person consents to that contact, or unless the court finds there are exceptional circumstances for not doing so. In the latter case, the courts would be required to provide written reasons for the decision.
The government motion would amend this clause in two ways.
First, it would add a subsection to clause 2 to require, where the victim or other person provides consent to any contact, that consent must be given in writing or in some other manner approved by the court. The reason is this simply clarifies the nature of the consent and ensures certainty that the victim's consent was in fact given in any subsequent proceeding.
The second part of the amendment would amend subsection 2.1 of clause 2 to require the court to state on the record, instead of providing written reasons, its decision for not imposing a condition prohibiting an offender from communicating with a victim. Written reasons in a court are not provided in many cases, and to require written reasons would result in unintended and unnecessary administrative delays and cost. Moreover, the motion's proposed approach is consistent with other Criminal Code provisions, such as where discretionary conditions are currently imposed under subsection 83.3(1), recognizance; subsection 110(3), weapons prohibitions; and subsection 719(3.2), credit for time served.
10:10 a.m.
Conservative
The Chair Conservative Mike Wallace
Thank you, Mr. Goguen.
Are there any questions or comments on amendment G-2?
Yes, Mr. Kellway.
10:10 a.m.
NDP
Matthew Kellway NDP Beaches—East York, ON
Could I ask about the issue of revocability of that consent?
10:10 a.m.
Conservative
10:10 a.m.
NDP
Matthew Kellway NDP Beaches—East York, ON
I don't know who I want to ask, but I am concerned about a victim being able to revoke that consent. Is that provided for in the amended clause?
10:10 a.m.
Douglas Hoover
I don't believe that would be necessary, in the sense that consent is a matter of fact in determination. It would only become an issue if there were a charge laid and if there were evidence that the consent was revoked. I think it would probably have to be in writing, and again the amendment is clear to make sure it's clear whether or not there was consent in writing. So if the defendant could produce, in writing, the fact that the consent was revoked in whole or in part, and he is within that parameter, then there would be no basis for the charge or conviction.
Certainly, in my view, in the way the motion is worded, it is revocable.
10:10 a.m.
Conservative
The Chair Conservative Mike Wallace
Thank you very much.
Is there anything further on the amendment?
(Amendment agreed to)
(Clause 2 as amended agreed to)
(On clause 3)
We have amendment G-3.
Mr. Goguen.
10:10 a.m.
Conservative
Robert Goguen Conservative Moncton—Riverview—Dieppe, NB
Clause 3 proposes to amend the conditional sentence provisions of the Criminal Code in the same manner that the bill proposed to amend the probation provisions in clause 2. For the same reasons, we are proposing to amend clause 3 to require the consent of the victim, witness, or other persons to be given in written or in some other manner approved by the court, and to require a court to state on the record, instead of providing written reasons, its decision for not imposing a condition prohibiting an offender from communicating with a victim.