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.