Justice Committee on May 6th, 2015

[The Chair, Conservative, Mike Wallace]

That's no problem. It's easy to do.

The floor is yours. We'll start over. I'm saying your name correctly, and the floor is yours.

[Bruce Hyer, Green, Thunder Bay—Superior North, ON]

Thank you very much, Mr. Wallace.

This amendment changes the wording in Bill C-35 in clause 2 from “shall” to “may”, as you see, and it adds the words:events, if the court considers it to be necessary for the proper administration of justice.

Why? This bill would introduce a mandatory consecutive sentence, a practice opposed by many experts in the legal field. Mandatory consecutive sentences are simply bad judicial policy, according to the Canadian Bar Association and others.

As the Canadian Bar Association has pointed out, judges are required anyway to abide by the general principle of proportionality in sentencing, an impossible task if they're also required to impose mandatory minimum sentences. The combination of mandatory minimums and mandatory consecutive sentences is particularly worrisome and seriously threatens judicial discretion.

[The Chair, Conservative, Mike Wallace]

Thank you, sir.

That is amendment PV-2 in the distribution that was sent out to you. It is Mr. Hyer's motion and is an amendment to clause 2.

Are there any further comments on that amendment?

Mr. Goguen.

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

We're opposed to the amendment. The essence of this bill, the important aspect, was to make this thing exactly that—consecutive—and to make it a mandatory consecutive. This of course heightens the importance of the jobs done by enforcement animals and they deserve that protection. The cost of training is excessively expensive. Not every animal is suited to that, and it's clear they deserve that protection. That was abundantly evident from the evidence that was presented before us.

[The Chair, Conservative, Mike Wallace]

Thank you very much.

Is there anything further on this amendment?

(Amendment negatived [See Minutes of Proceedings])

(Clause 2 agreed to)

(On clause 3)

Now we are on clause 3. We have a number of amendments.

We are going to start with the amendment from the Liberal Party.

Mr. Casey, the floor is yours.

[Sean Casey, Liberal, Charlottetown, PE]

Thank you, Mr. Chair.

Colleagues, this is an amendment that formed the basis of my questioning of the witnesses that are here and to the other witnesses. The bill at present contains the words “wilfully and without lawful excuse”. It is, if you will, a qualifier on what the crown has to prove, or extra elements that the crown has to prove, in order to secure a conviction.

Within the code, there is already a legal excuse defence. That legal excuse defence is found in subsection 429(2), and that legal excuse defence applies to this bill and this clause. That legal excuse defence in subsection 429(2) says:

No person shall be convicted of an offence under sections 430 to 446

—and this fits within that window—

where he proves that he acted with legal justification or excuse and with colour of right.

So that legal excuse defence presently exists. There are words in this section that also purport to give a legal excuse defence. We asked the officials about this. When they testified, I asked them, does the legal excuse defence that is inserted into this act widen or narrow the defence in law that already exists? Their answer was neither, so my question is, why do we need it? If it doesn't make the defence more available or less available, these words, I would submit to you, are simply surplusage and shouldn't be there. That's what this amendment does: it takes them out.

The difficulty with leaving these words in, I would suggest to you, is that you have words in the statute that according to officials aren't designed to make the defence more available or less available. They're designed to be consistent with what's already in the code, but it uses different words.

What's going to happen is that when someone is charged under this section you're going to have a massive debate among the lawyers, the judge, and the court of appeal as to whether this person comes within the words that are in the act now—whether the person comes within the words of the lawful excuse defence that was already there—or whether the person comes within the words of both and what impact this has on the person's guilt or innocence.

Given that these officials have said to us that those words were not designed to change the legal excuse defence, we don't need them. I would urge you to adopt this amendment that will remove these words, which by admission weren't designed to change the law but were intended to be consistent with the law, albeit using different words.

Thank you.

[The Chair, Conservative, Mike Wallace]

Thank you for that explanation of your amendment.

We have a speakers list on the amendment.

Mr. Calkins.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

Thank you, Mr. Chair.

I tried to follow Mr. Casey's argument for this, and while his argument wasn't hard to follow from a logical perspective, I believe the clause as it stands right now is, from my perspective, best left alone.

Mr. Casey's logic is that if it's surplus and if it doesn't change anything, there's no point in changing it away from the legislation that currently exists or as it's currently written, but I think that for greater certainty.... I've been in front of courts before, and there are times when the crown, or defence lawyers, or other people may not read the inclusivity language that might be present in other parts of the code. These kinds of things can get missed, so for greater certainty, I think, this clause, or this piece of this clause, or this wording in this clause is fine the way it's written. I would like to see it there.

I would hate to see a misinterpretation by a judge, a crown prosecutor, a defence lawyer, or by somebody else for that matter, if somebody is driving a car down the road, an officer unleashes his dog, and a perpetrator runs across that road with the dog in pursuit, gets hit by the car, and is maimed, or killed, or whatever. That's inadvertent. There was no intent. There was no wilful or lawful excuse in doing, so or there was no wilful intent. I think that would exonerate that person in a much more clarified manner. I think the language as it is right now is fine.

[The Chair, Conservative, Mike Wallace]

Thank you very much. The speakers list keeps growing.

Madam Boivin.

[Françoise Boivin, NDP, Gatineau, QC]

Maybe we could ask our officials if they have had time to reflect on the point by Mr. Casey since the first discussion we had on the subject and if they maybe could clear our heads on the matter.

[The Chair, Conservative, Mike Wallace]

Do you have a comment, Mr. Zigayer?

[Michael Zigayer, Senior Counsel, Criminal Law Policy Section, Department of Justice]

Yes, Mr. Chair. We did reflect on the question Mr. Casey put. In response to the comment made by Mr. Calkins a moment ago, it is true that lawyers may become unfamiliar with parts of the code. If you haven't prosecuted impaired driving for a while, you may not know that there's a specific provision that requires you to do X. It may be that you forgot the requirement to provide notice. In the particular situation we have here, it may be that the prosecutor forgets about section 429 and would look at the offence without that expression “wilfully and without lawful excuse” and say, “My goodness, have I got a strict liability offence here?”

In fact, you might get some greater litigation on the fact that the court would say that there has to be criminal intent there, so then they will have to interpret the criminal intent. By removing it with the intention of avoiding litigation, you're actually opening the door to more litigation, as the court is being invited both by the defence and by the crown to assign the proper criminal intent, because that's really what “wilfully” is. It's a description of the criminal intent. If it's not there, the court may say, well, “knowingly”.....

I'm just starting my comments, but yes, we did have a look, and that's one of the problems that we've identified if you remove the definition or the description of the criminal intent, and—

[Françoise Boivin, NDP, Gatineau, QC]

Then is there a risk of contradiction between the two clauses?

[Michael Zigayer]

They're not in contradiction. One might be redundant, but there's nothing wrong with that.

[Françoise Boivin, NDP, Gatineau, QC]

It's redundant. Okay.

[The Chair, Conservative, Mike Wallace]

Thank you for that question and answer.

Is there anything further, Madam Boivin, while you have the floor?

[Françoise Boivin, NDP, Gatineau, QC]

No, that's good. Thanks.

[The Chair, Conservative, Mike Wallace]

Mr. Goguen.

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

We all know, Mr. Chair, that when you're trying to prove a criminal case that's beyond a reasonable doubt, there are many offences that have more than one defence. Certainly this clearly spells it out. As Mr. Calkins has said, it requires a specific intent to harm or kill the animal. We've had Mr. Wilks, who's been dog-handling, say that he's had some instances when something is about to happen and he has said, “I'm releasing the dog.” Was that actually heard? Was this really done on purpose?

Some of the lawyers may not pick up on that, but look, not every defendant in court is represented by a lawyer. Many people appear on their own behalf, and certainly this points it out clearly to the judge, in that there's the defence: it had to be specific. Those are terms that the common defendant without representation that I talk about would use: “I didn't do it on purpose and here's why”. It's clearly spelled out for the judge. It serves that purpose. For that reason, we'll be voting against the amendment.

[The Chair, Conservative, Mike Wallace]

Thank you.

Madam Péclet.

[Ève Péclet, NDP, La Pointe-de-l'Île, QC]

In terms of the question I wanted to ask, Ms. Boivin took the words right out of my mouth, but there's still something I would like to know.

The courts have probably interpreted the term “legal excuse” on many occasions. Have you reviewed the case law to determine whether courts have already addressed that issue, or is it a question they have not answered yet?

[Michael Zigayer]

In the Criminal Code, we find this expression in a number of offences. We have looked at the expression “wilfully and without lawful excuse”. We must also mention that the wording of the offence in this case is based on another offence, the one in section 445. The two are similar. In fact, the offence from section 445.1 would be included in the new offence.

Both use the words “wilfully and without lawful excuse”. Since those two provisions are really similar, the idea is to ensure that one mirrors the other. If we had made a distinction between them, people would have wondered why and what the distinction means. Would we have wanted to ask the court to interpret a difference when we did not want to establish one? In fact, the difference lies in the specificity of the animal in question.

[The Chair, Conservative, Mike Wallace]

Thank you very much, Madam.

Thank you for those answers.

Our next questioner on the amendment is Mr. Seeback.

[Kyle Seeback, Conservative, Brampton West, ON]

Are there other examples in the Criminal Code where you have this kind of redundancy, where you have one section that gives specific exculpatory language, and then in a new section that's already covered by that section, you put another specific exculpation?

If that's true, have the courts looked at that and had difficulty interpreting that?

[Michael Zigayer]

I'm not aware that they've had any difficulty in interpreting them, but section 429 applies to that whole part.