Justice Committee on Oct. 24th, 2018

[The Chair, Liberal, Anthony Housefather]

I am calling to order this meeting of the Standing Committee on Justice and Human Rights. It is a pleasure to have everyone here.

We have some witnesses from the Department of Justice, who have expertise in this matter.

If we have any questions for them, they're here to answer. They've all been with us before, so I'm not going to introduce them.

I want to just go over briefly both the agenda and procedure.

This is a complicated bill. It's a long bill, and there are a lot of amendments. We will do our best to make sure that before we vote on anything, everyone understands fully what we're debating and what we're voting on. That will be my job, and I will do my best.

If you have any questions and I have called a vote, please stop me and say you don't know what number we're on, or you don't know what we're discussing. I will do that, because the important thing is that the committee walk through this process together, with Ms. May who's here to join us—welcome, Ms. May—that everybody fully understands where we are, and that proper attention is given to all of these very important issues.

What will also happen in sequence is that where there is a non-substantive amendment that deals with a later substantive amendment, meaning that there's a clause that says we're removing section 173—because there's a list of clauses and one of them is section 173—and that happens first, for example, at clause 4, I will go to the substantive question on section 173 in the later clause and then return to clause 4. Normally, we go sequentially, but where there's a later substantive decision that bears on the earlier question that cannot be made without knowing what the substantive later decision is, I'm going to go to the substantive clause.

Does everyone understand?

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

No. Say that one more time, please.

[The Chair, Liberal, Anthony Housefather]

Sure. If there is a list of clauses to be removed—for example, there's a proposal to remove section 173 from a list—I'm going to then go to the actual question of whether we are repealing section 173 before dealing with that little list, because if we don't make that decision, we don't know how to vote on that list.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

Thank you.

[The Chair, Liberal, Anthony Housefather]

I will try to bring everybody clearly to where we are.

(On clause 1)

That said, I will move to clause 1, on which we have an amendment, Green Party-1. I will give Ms. May time to speak to it, and then everyone else time to speak. However, I would note that if Green Party-1 is adopted, NDP-1, on page 290.1, then would be inconsistent. Therefore, if you're in favour of only NDP-1, Green Party-1 would stop us from voting on that.

Ms. May, the floor is yours.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Thank you, Mr. Chair. I appreciate the warm welcome. We are friends, but I do need to put on the record that I'm only here because the committee has made the process more difficult by adopting a motion that I'm sure you were asked to adopt by someone in some central authority of the Liberal Party. Every committee passed the identically worded motion, so it puts a bit of a test to the fiction that the committee really does control its own process.

Because of the motion you passed, my rights are infringed. I no longer have the right to present these amendments at report stage because I have been invited here. It's a very large increase to my workload and it happens at every committee. I am here for clause-by-clause, and I know you have a long process. I just want to remind you of why I'm here.

I'll be as brief as I can. This first amendment is to create a definition for the term “vulnerable population”, which is used in the legislation. You heard from a couple of witnesses, one of whom was the Canadian Association of Chiefs of Police, who suggested that there be a definition of “vulnerable population”. They set out some factors, such as a person's ethnicity, economic status, drug dependency, age, mental disability and overall health. Those are from the brief of the Canadian Association of Chiefs of Police. Also, Dr. Marie-Eve Sylvestre, of the University of Ottawa law school, suggested some other aspects of defining “vulnerable population”.

That's why we've crafted this definition, which includes, in more appropriate legislative statutory language, the essence of what was being recommended by witnesses who you've heard already. I won't read it to you, but it also draws on some of the language from Bill C-81 in terms of people with disability and will be a guidance to a police officer for an operational capacity, as suggested by the chiefs of police.

Thank you, Mr. Chair.

[The Chair, Liberal, Anthony Housefather]

Thank you very much, Ms. May.

Are there other comments from members of the committee?

Mr. Rankin.

[Murray Rankin, NDP, Victoria, BC]

I support this. You'll note, as you did already, that amendment NDP-1 is very similar. It draws upon some of the same testimony. This one is actually a little better. It has a bit more detail. Therefore, I would support this and supplant NDP-1.

[The Chair, Liberal, Anthony Housefather]

This is the first time I've heard someone admit that his work wasn't as good someone else's. What humility Mr. Rankin always shows. I'm very impressed.

Are there any comments from any other members of the committee?

Mr. Fraser.

[Colin Fraser, Liberal, West Nova, NS]

May I ask for the department's interpretation of this, and how it would relate? My understanding is that defining “vulnerable population” could be reducing the number of people included in this. I'd like the department's interpretation of that.

[Shannon Davis-Ermuth, Legal Counsel, Criminal Law Policy Section, Policy Sector, Department of Justice]

Yes, that's correct. The department's interpretation is that understandings of who is vulnerable for different purposes changes over time. The risk of defining it by specifically listing some groups of vulnerable populations in the code is that it would need to be amended as often as understanding evolves.

The other thing to note about the way the term “vulnerable population” would be used in proposed section 493.2 of the Criminal Code is that there is some language there that suggests what would be vulnerable in that context.

It's not about who's overrepresented at large, but which vulnerable groups are disadvantaged by the bail process. This definition of “vulnerable population” addresses people who are vulnerable in the criminal justice process, but not necessarily for this purpose. The language in proposed section 493.2 would guide police and courts as to what type of vulnerability is relevant in this context.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Are there any other comments from committee members?

Ms. May, do you have anything you want to say to close?

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Yes. Having looked at this bill and both the bail context and the criminal justice process, I hate to disagree with a departmental analyst but I think it suits the definitions and the purposes of both bail and criminal justice.

I'm hard pressed to imagine a hypothetical in which this fails to anticipate a vulnerable population. If it required amendment at some later time, I don't see that as a large obstacle.

As an operational matter, the chiefs of police have asked for guidance as to what a vulnerable population is. I suppose we might at some future date experience extraterrestrial visitors, who are not anticipated as a vulnerable population in my definition, but outside of extraterrestrial visitors I can't think of anything this definition fails to anticipate in terms of what would be a vulnerable population.

[The Chair, Liberal, Anthony Housefather]

Thank you.

Mr. Clement.

[Tony Clement, Parry Sound—Muskoka, CPC]

Yes, District 9 was a great movie, so there you go.

I just want to get the Justice officials' reaction to my question, then. If it is not defined in the way Ms. May would like, who does the defining and under what circumstances?

[Shannon Davis-Ermuth]

If it's not defined in the code, who would define it? They would be looking at the circumstances. They'd have familiarity, whether it's a police officer deciding whether or not to release an accused on bail, or a judge deciding whether or not to release the accused. There could be training with respect to what types of factors tend to disadvantage different groups. If, traditionally, the bail system requires people to put up money in order to be released, then they would have to be sensitive to the types of groups that might be less likely to have money and, therefore, less likely to be released. Other groups would be less likely to have a fixed address, or there may be impacts that addictions could have on the individual.

One other possible benefit of not listing a particular group but just saying, “If you're part of this group, it applies”, is to get the police officers and the judges who are applying the term to think about how it impacts the individuals in the whole process. They would try to remove any kind of discriminatory thinking about people who don't fit their mould of the “good citizen”, keeping the rest in jail.

[Tony Clement]

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you. Are there any further comments?

(Amendment negatived [See Minutes of Proceedings])

(Clause 1 agreed to on division)

(Clauses 2 and 3 agreed to)

(On clause 4)

[The Chair, Liberal, Anthony Housefather]

On clause 4 we have amendment X-1, which is identical to the Green Party-2. This relates to removing the “indecent act” section—section 173 of the Criminal Code—and removing a reference to it that falls in clause 4.

I'm not sure whether any member of the committee would want to move amendment X-1, but amendment PV-2 covers the same as well, so we will be debating it.

What I'd like to do is move to the substantive question, which is linked to amendment X-35 on page 71 of the binder of amendments. Amendment X-35 is identical to Green Party-5. These relate to the section we will need to deal with before we can actually deal with clause 4.

Is everybody on board? If so, does anyone wish to move one of these amendments to repeal section 173? If so, please feel free and speak to it.

Mr. Rankin, would you like to speak to the amendment?

[Murray Rankin, NDP, Victoria, BC]

I was very moved by the testimony on the historic injustices to LGBTQ2 people who testified, and I'm persuaded that there was a disproportionate impact upon those people, as a first matter.

Second, I believe there are other sections of the Criminal Code that will address issues that would be covered by this section.

For those reasons I would like to move that it be repealed.

[The Chair, Liberal, Anthony Housefather]

Let me just also make clear to everyone that this section of the Criminal Code—section 173—deals solely with indecent acts. It does not deal with vagrancy or bawdy house rules, which are separate sections with which we will be dealing when we get to those sections. The vote on this one does not bear on those other two sections. It is solely related to section 173, indecent acts, and this is a motion that would effectively repeal that section from the Criminal Code.

Is there other discussion? Does anyone else wish to intervene?

[Arif Virani, Parkdale—High Park, Lib.]

I'm sorry, Mr. Chair, which one are we talking about right now? Which amendment is this?

[The Chair, Liberal, Anthony Housefather]

We're talking about amendment X-35, which Mr. Rankin moved, which is identical to Green Party amendment PV-5 by Ms. May.

Basically, I'm to give you a list.... By the way, thank you to the clerk for always doing such an excellent job.

There is a consequential list of amendments, which I will just read out to you, that relate to removing section 173 from various sections. It lists the sections in the code that would be affected consequentially by this amendment, X-35.

The vote would apply to amendments X-1, X-33, X-35, X-62, X-63, X-64, X-65, X-139, X-140, and PV-45, which all effectively do the same thing, which is to remove section 173 from a list.

Ms. May.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

I think you may have forgotten to mention the second.... You mentioned it the first time. It's identical to amendment PV-5 in your list. You started with all the X amendments, so it would be amendments PV-45 and PV-5.

[The Chair, Liberal, Anthony Housefather]

Mr. McKinnon.