Justice Committee on July 15th, 2014

[The Chair, Conservative, Mike Wallace]

I'm going to call to order meeting number 44 of the Standing Committee on Justice and Human Rights.

The orders of today are, as per the order of reference of Monday, June 16, 2014, Bill C-36, An Act to amend the Criminal Code in response to the Supreme Court of Canada decision in Attorney General of Canada v. Bedford and to make consequential amendments to other Acts.

We are being covered by, I believe, CBC and Sun TV. All cameras are fixed. The one behind us is the camera that will be used. It will be fixed only on those who are speaking and is not to be used to pan the room.

We are joined by witnesses from the Department of Justice, in case there are any questions about the clauses or amendments that may be brought forward.

Madame Boivin, you have your hand up before we start the clause-by-clause consideration.

[Françoise Boivin, NDP, Gatineau, QC]

I'll be very brief, because I don't have much hope. But you always have to have hope.

I'd like to move a motion, in one last attempt with the Conservative benches.

Based on what we've heard and based on the theories we've been hearing left and right—I'm not talking in the political sense, but in terms of the very diverse positions we've heard—I'd like to move a motion calling on the Standing Committee on Justice and Human Rights to recommend that the government send Bill C-36 to the Supreme Court of Canada before proceeding with the clause-by-clause study.

The reason, as everyone knows, is that the Minister of Justice and Attorney General of Canada is required to ensure that his bill complies with the charter and our Constitution. Constitutional experts have told us that the bill doesn't comply and others have told us that it does. Simple and good legal logic would have us present a bill of sound order, especially when this bill is in response to a Supreme Court decision.

As a lawyer, I'm not comfortable sending this bill back to the House at report stage and guaranteeing to our colleagues in the House that it complies with the charter and the Constitution.

I think we should avoid spending a lot of money. As experts and the minister himself have said, this bill will end up before the court as surely as night follows day. With that in mind, I think the prudent and diligent thing to do would be to send the bill to the court. That's what the Standing Committee on Justice and Human Rights should request at this time.

[The Chair, Conservative, Mike Wallace]

Thank you very much.

I'm assuming there will be comments on that motion.

Mr. Dechert.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Just briefly, I thank Madam Boivin for the motion. She knows there's been much discussion of the potential for a direct reference to the Supreme Court of Canada.

Along with the government, the Minister of Justice and others, I am very confident that Bill C-36 as drafted is in full compliance with the Bedford decision and the Charter of Rights and Freedoms. This is our response to the Bedford decision. It was carefully considered and carefully crafted by the minister and by Department of Justice specialists.

We heard from those Department of Justice specialists last week. They made it clear that in their considered opinion as experts in the field of criminal law, the bill is in compliance with the Bedford decision and the Charter of Rights and Freedoms in all its aspects.

As a lawyer, myself, I say personally to you that I am very comfortable that it is compliant. I also take the words of the chief justice seriously. She said that Parliament has a legitimate right and obligation to propose a new way of dealing with the issue of prostitution.

It was thrown back directly to Parliament to do that. My personal view is that to do otherwise would be an abdication of our responsibility as elected members of Parliament. On that basis, we'll be opposing the motion.

[The Chair, Conservative, Mike Wallace]

Thank you.

Mr. Casey, and then we'll end with Madame Boivin.

[Sean Casey, Liberal, Charlottetown, PE]

Thank you, Mr. Chair.

I won't repeat the arguments put forward by Madame Boivin, except to say that I agree with them. We have asked that this be put to the Supreme Court as a reference. All of the witnesses who appeared before the committee who were trained in the law, except for the Minister of Justice and those from the Department of Justice, and one lawyer who disagreed with her client, were of the same view that it will not pass constitutional muster.

The prudent thing to do in the circumstances is not to burden Canadians with a law that will eventually be found to be unconstitutional, over a period of six to seven years while it wends its way through the courts, and to get the opinion of the court in an expeditious manner. This motion allows for that to happen.

If all of the lawyers who testified before the committee are wrong, at least we'll have a quick answer. As far as I'm concerned, there is very little risk. It's certainly in the best interests of Canadians, all of those who are impacted by this legislation, to have that decision made by the Supreme Court. It would also show some respect for the process we've just gone through and for the testimony that's come before the committee.

I support the motion.

[The Chair, Conservative, Mike Wallace]

Thank you, Mr. Casey.

Madame Boivin.

[Françoise Boivin, NDP, Gatineau, QC]

Briefly, Mr. Chair, I'm glad that Mr. Dechert is so sure of himself as a lawyer. I don't tend to be that affirmative. If my client were the Government of Canada and I were reviewing this, I'm not sure I could go either way. I'm still looking forward to seeing what legal advice they receive.

All of the lawyers around this table have at some point had to write some legal advice. You take the facts of the case, if it's a factual case, which it's not here; it is a legal question. Then you have to review both sides, and sometimes third sides and fourth sides, and possibilities.

I still remember when we were told by the government members of the committee, when we were reviewing the changes to the Supreme Court Act to validate a nomination, how it was sound, that it was legally perfect. They were so confident. Then look down the road to what happened. Maybe the question is the credibility of this government, the fact that they are so secretive, that we don't have that scientific survey, for which our request was turned down when we moved to have it tabled.

When you see a lawsuit, good or not, valid or not, as was the case of Edgar Schmidt and the Attorney General of Canada.... When your own employee says, “We were asked to do something that is not charter compliant, not to do our work”, whether he was right or wrong, it puts doubts in the minds of people.

I know we'll be told there will be delays, that there is deadline from the Supreme Court. But if you do a reference to the Supreme Court, of course, the Supreme Court will understand that it's based on its decision of Bedford and will adjust and adapt. The Supreme Court is not an idiot court.

It's too big of an issue, too divisive, with too many people saying the same thing but from different angles—or not the same thing on others. There is legal advice that says one thing or another. How can people seriously say, looking at me, after four days of testimony and a weekend to ponder this, that they are 100% confident? If they have information that we don't have, please share it with us, because from what I've heard and read, it is not that evident.

[The Chair, Conservative, Mike Wallace]

Madame Boivin, we need specific wording of the motion so that the clerk can record it properly.

[Françoise Boivin, NDP, Gatineau, QC]

Mr. Chair, the motion is as follows:

That the Committee suspend the clause-by-clause study and recommend to the government that Bill C-36, An Act to amend the Criminal Code in response to the Supreme Court of Canada decision in Attorney General of Canada v. Bedford and to make consequential amendments to other Acts, be sent to the Supreme Court, pursuant to Section 53(1) of the Supreme Court Act.

[The Chair, Conservative, Mike Wallace]

Mr. Dechert, you have a comment on the actual motion.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Thank you, Mr. Chair.

I just want to respond briefly, and I won't repeat what I said earlier. While it's true that I have practised as a lawyer—I'm a member of the Bar of Ontario—and I have heard all the legal arguments on both sides, and I'm appreciative of the views that were expressed to us by witnesses and others, and I have examined it from my own perspective as a lawyer, frankly, I'm not here today as a lawyer.

I'm here today as an elected member of Parliament sent here by the people in my electoral district to make decisions. I'm also a member of the government, and I believe this bill does meet all the requirements. I also believe that by exercising the power that we're here to exercise today, we're doing the job we were sent here to do by the people who elected us.

On that basis I appreciate Madame Boivin's comments and the motion we'll be voting against, and I would call the vote.

[The Chair, Conservative, Mike Wallace]

There's no such thing, but seeing no other speakers, for the motion on the table as presented by Madame Boivin, all those in favour? All those opposed?

(Motion negatived)

We're off to clause-by-clause consideration, and I have a couple of comments. Pursuant to the Standing Order 75(1), consideration of the preamble and clause 1, the short title, will be postponed, and there are some amendments to the preamble and so on. That's just so you know that's going to happen at the end of the clause-by-clause review.

I have two further things to say. I'd like to do everything on division if possible. Obviously there will be a vote on amendments, but on division, and I wouldn't mind for time's sake that where there are no amendments, unless you want to discuss a clause, I will group them together if that's okay.

We have no amendments between clauses 2 and 7.

[Françoise Boivin, NDP, Gatineau, QC]

No, because we may want to speak, as there might be some we agree with. Oh, surprise. There might be some good clauses in that bill.

[The Chair, Conservative, Mike Wallace]

I don't know if you heard me. I was going to do it on division, so if you want an actual vote, speak to it, and we'll vote on it. Is that okay?

[Françoise Boivin, NDP, Gatineau, QC]

Excellent.

[The Chair, Conservative, Mike Wallace]

Is that good for everyone? We'll do one at a time then.

Shall clause 2 carry? On division? You want a vote then? There's no yes. It's we vote, or we say on division. You want a vote.

(Clause 2 agreed to)

(Clause 3 agreed to)

Let me know if you want to speak to it. I'll just run through it if you want to speak to it.

(Clause 4 agreed to)

(On clause 5)

Madame Boivin.

[Françoise Boivin, NDP, Gatineau, QC]

A good explanation is important, so that the government doesn't get too carried away.

These clauses clearly have to do with human trafficking. I don't think a single person this whole time has sided with those who engage in human trafficking or in trafficking children. It may have been about quantifying or explaining the positions on clauses 1 to 5.

[The Chair, Conservative, Mike Wallace]

Thank you.

Is there anything further on clause 5? Seeing none, shall clause 5 carry? All those in favour?

(Clause 5 agreed to)

[Chair]

Now to clauses 6 and 7.

[The Chair, Conservative, Mike Wallace]

(Clauses 6 and 7 agreed to on division)

(On clause 8)

Thank you very much.

Here we have one amendment. It is from the government, G-1, that Bill C-36, in Clause 8, be amended by replacing lines 13 to 18 on page 6 with the following:

171 or 279.011 or subsection 279.02(2), 279.03(2), 286.1(2), 286.2(2) or 286.3(2);

The amendment is in order because it's replacing lines.

Mr. Dechert, the floor is yours to speak to it.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Thank you, Mr. Chair.

This is a technical amendment, and so I'd be appreciative of hearing the officials on this as well.

Clause 8, as you know, proposes amendments to paragraph 171.1(1)(a) of the Criminal Code, which prohibits making sexually explicit material available to children in order to facilitate the commission of any of the enumerated child sexual offences, including the existing child prostitution offences.

Our proposed amendment would remove the references to subsections 212(1), 212(2), 212(2.1), and 212(4) for the reasons I've provided. There would be no gap in the law, and the accused person would always be charged with the law as it existed at the time they allegedly committed the offence.

On that basis we'll be supporting the amendment.

[The Chair, Conservative, Mike Wallace]

Did you want our witnesses from Justice to...?

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Sure.

[The Chair, Conservative, Mike Wallace]

Do you have anything to add to that description?