Evidence of meeting #113 for Justice and Human Rights in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was agreed.
A recording is available from Parliament.
3:50 p.m.
Liberal
Ron McKinnon Liberal Coquitlam—Port Coquitlam, BC
I would like to ask the officials a question.
My understanding about this particular offence is that if we remove it, there's really no other place in the Criminal Code to capture this kind of behaviour.
Could you comment on that?
3:50 p.m.
Matthew Taylor Acting Senior Counsel, Criminal Law Policy Section, Policy Sector, Department of Justice
Thank you for the question.
It's ultimately going to depend on the facts of the case at question, but there is, certainly, a risk that removing section 173 would leave a gap in the Criminal Code, in terms of being able to respond to certain types of behaviour.
Just very quickly, section 173 does two different things. Subsection 173(1) criminalizes indecent acts, and I think the committee has heard concerns about the way that provision has been used historically to target particular communities. You may also know that since the Labaye decision by the Supreme Court of Canada, the way this offence applies is quite different from the way it applied historically. Our review of jurisprudence suggests that it isn't being used in a way that would discriminatorily target particular communities.
The second part of the offence targets exposure to children for a sexual purpose. Our review of the case law suggests that it is being used in a way that targets morally blameworthy conduct—normally, individuals exposing themselves and committing sexual acts in the presence of other persons.
That's our understanding of the law. While some of that conduct could be addressed through other offences, there is a risk that there would be a gap, if it were removed.
3:50 p.m.
Liberal
The Chair Liberal Anthony Housefather
Do any other members wish to comment?
Is there anything further you wish to say, Mr. Rankin?
3:50 p.m.
Green
Elizabeth May Green Saanich—Gulf Islands, BC
I think that removing this section is consistent with the Prime Minister's apology to the LGBTQ2 community. I don't think we should be so quick to leave such an offensive statute on the books, so I'm hoping that section 173 can be repealed.
3:50 p.m.
Liberal
Colin Fraser Liberal West Nova, NS
Just on that point, I think it was important, Mr. Chair, that you clarified this, because we heard evidence relating not only to section 173 but also to the bawdy house and vagrancy provisions, which will be dealt with later.
I agree with the department's analysis, that this would create a gap and that this one is different from the other ones. I accept, however, the point that's being raised.
3:50 p.m.
Liberal
The Chair Liberal Anthony Housefather
Thank you very much. Is there any further discussion?
Basically, what we are voting on now is the substantive amendment, which is the identical amendments PV-5 and X-35, to repeal section 173. I will now ask for a vote.
(Amendment negatived [See Minutes of Proceedings])
That brings us back to clause 4. I will judge that as a result of the defeat of the substantive amendment, the amendments X-1 and PV-2 and all of the other consequential amendments have been defeated or are no longer valid as a result of the retention of the substantive section 173.
This means that we have, then, no other amendments proposed to clause 4.
(Clause 4 agreed to)
(Clause 5 agreed to)
On clause 6 there are two amendments, CPC-1 and X-2. There is a line conflict between them, so if one is adopted the other cannot be. However, the whole issue of amendment X-2 depends on clause 319 of the bill, which deals with changing what is the standard summary sentence from six months to two years less a day.
If clause 319 stays the way it is, then all of these amendments would not be receivable anymore, because they change back to “two years less a day” the hybridized provisions.
The Conservative amendments are still good, but the X amendments, which serve to put in “two years less a day” where the terms were left at six months in the other clause, would no longer be receivable.
Did everybody get that? Good.
We are going to go to clause 319 first.
Clause 319 is not an amendment. We're going to go to clause 319 of the bill. It's on page 137.
Basically, this has the effect of changing the general penalty of imprisonment on summary conviction in the code from six months to two years less a day.
First of all, does anybody have any amendment that they want to propose to clause 319? We didn't receive any.
If not, I'm wondering whether there's anybody who wants to debate, either in favour or against this clause, because I'd like to vote on this clause before going back to the amendment.
Effectively, this would be the question: Do you accept the change, for summary convictions, from six months to two years less a day, or not? If not, you would vote against this clause. If yes, you would vote in favour of this clause. Does everybody understand?
Mr. Clement.
3:55 p.m.
Parry Sound—Muskoka, CPC
Thank you, Chair. I would like to speak to this amendment to the code by supporting it as the next-best option.
I and Mr. Cooper have tabled many amendments, which we think are better amendments to the bill. In lieu of those passing, as a little bit of extra insurance—belt and suspenders, perhaps—we would be supportive of this clause passing as the next-best option.
3:55 p.m.
Liberal
The Chair Liberal Anthony Housefather
Do other colleagues have comments?
(Clause 319 agreed to)
(On clause 6)
Then this brings us back. It means that the X amendments—and I will call them out for you as we go through—that would have changed the hybridized sentences to two years less a day will no longer be receivable, and we will move to the Conservative amendment CPC-1.
Mr. Cooper.
4 p.m.
Conservative
Michael Cooper Conservative St. Albert—Edmonton, AB
Thank you, Mr. Chair.
This is the first of a number of amendments that Mr. Clement and I have brought forward dealing with the hybridization of what are currently serious indictable offences under the Criminal Code. This particular amendment deals with the indictable offence of sabotage, and it would de-hybridize it so that it could no longer be prosecutable by way of summary conviction.
4 p.m.
Liberal
The Chair Liberal Anthony Housefather
Thank you very much.
Colleagues, let me again explain something. Originally, we had a discussion about how to not hybridize. I sent an email advising that you would vote against the clause, but this is a perfectly appropriate way as well to de-hybridize, whereby the language that was proposed and that would make slight changes to the clause in the bill is retained and only the portion that is de-hybridizing is removed, so that the effect of the amendment would be to leave it only an indictable offence. That is the effect of multiple different amendments that we'll be treating.
Is everybody clear on that? Good.
Mr. Rankin.
4 p.m.
NDP
Murray Rankin NDP Victoria, BC
Since we're going to have a lot of these, I would like to say that I support the Conservative amendment CPC-1 and others as well, because we have come to the conclusion that we will oppose hybridization in general. That would leave it, I know, as straight indictable in this context—sabotage—but generally speaking we are persuaded by Christian Leuprecht, who told us that the effect of these changes would be to download this to the provincial courts and the already overwhelmingly crowded provincial corrections systems.
You've heard me say it before. The better solution is the one that was in the minister's mandate letter, which is completely lacking in this bill, namely, to get rid of mandatory minimums and give courts the discretion they used to enjoy. I think that would solve the problem much more effectively than what they are doing here.
I can speak to other specifics, but just to give you notice, Chair, that's the position I'll be taking on these matters.
4 p.m.
Liberal
The Chair Liberal Anthony Housefather
Thank you very much, Mr. Rankin.
Mr. Clement, you wanted the floor again.
4 p.m.
Parry Sound—Muskoka, CPC
First of all, I want to thank Mr. Rankin for his intervention and the position of his party on hybridization. I of course support Mr. Cooper's amendment in this case.
I want to say generally that we heard a lot of testimony at committee from those who felt very strongly that hybridization was the wrong way to go. In particular, I want to read into the record that Mr. Christian Leuprecht, who is a professor at the department of political science at Royal Military College, felt that way, as did Ms. Julia Beazley, who is a director of public policy at the Evangelical Fellowship of Canada, and Ms. Markita Kaulius, president of Families for Justice.
These are just a few examples of those who felt very strongly that hybridization was going 180° in the wrong direction, and they asked this committee to reconsider on that front.
4 p.m.
Liberal
Colin Fraser Liberal West Nova, NS
Thank you.
I appreciate the points raised by my colleagues. I note that there are distinctions in the rationale for each position from the Conservatives and the NDP. I think that's important to highlight. We did hear from a number of witnesses that hybridization will allow Crown flexibility. We trust Crown attorneys every day to make these decisions on hybrid offences: on how to proceed and how to use all the tools at their disposal in order to ensure that justice is not only done but is seen to be done. I trust the Crown attorneys to make those decisions.
Hybridizing will allow greater flexibility and has been the subject, as we heard, of discussions between the federal government and the provinces and territories. The sentencing principles under section 718 of the Criminal Code will remain the same and the circumstances of the offence and of the offender will remain the principal thing that is determinative of the sentence. I think that hybridizing—in particular, this offence and a series of others—is an important tool that we will allow the Crown attorneys to use and, with great respect, that will not have the consequences on sentencing that have been advanced by my honourable colleagues across. I think that is important.
We have to deal with the Jordan decision. This will allow the courts to proceed in the appropriate cases or the Crown attorneys to make those determinations in the appropriate cases for them to proceed in a more effective manner. I will not be supporting this amendment.
Thank you.
4:05 p.m.
Conservative
Michael Cooper Conservative St. Albert—Edmonton, AB
Thank you, Mr. Chair.
In light of the fact that we're going to be putting forward a number of these, I'd like to address the issue broadly speaking, which Mr. Fraser did in his remarks.
I would say first of all that part of the problem with this bill in terms of hybridization is the fact that the government simply took a whole series of offences without consideration to any one of those offences and said, “We're hybridizing them.” Basically, with a few exceptions, if the maximum sentence is 10 years, they're going to be hybridized. That is not a well-thought-out process.
With respect to the issue of flexibility—Crown flexibility—no witness that I heard could explain how this would address the issue of Jordan in addressing the backlog. We heard evidence that 99.6% of criminal cases are already before provincial courts. As Mr. Rankin mentioned, the effect of hybridization, as witness after witness conceded, would be of course to download more cases onto provincial courts. For the most part, that's where summary conviction offences are dealt with.
Of course, from the standpoint of the timeline in Jordan, instead of 30 months you're now dealing with 18 months for matters within provincial courts. We also heard evidence that in fact not only are you downloading cases onto provincial courts, but in terms of the prospect of cases being thrown out due to delay based upon the timeline set in Jordan, whereby delay is deemed presumptively unreasonable, the risk would increase, not decrease.
Finally, Mr. Chair, with respect to Mr. Fraser's point about sentencing principles, obviously this bill is not changing the law around sentencing principles. It is changing the sentence, the maximum sentence that a judge could provide for, in a very dramatic way—from 10 years to a maximum of two years less a day, without any transparency and without any accountability in terms of understanding why one case might be brought down to a summary offence and another an indictable offence. That was another substantive issue that was raised about the issue of transparency and the lack of it as a result of these changes.
4:05 p.m.
Liberal
Colin Fraser Liberal West Nova, NS
With regard to the great percentages, I take the point with respect to downloading onto the provincial courts. That is a concern. However, this bill as a whole deals with many aspects that will help alleviate the overburdening of the provincial courts. For example, the administration of justice offences, which we'll be getting to later in the bill, will have a dramatic impact on reducing the number of offences that we know are one of the main causes of the overburdening of the provincial courts.
This bill as a whole has to be looked at in terms of how it alleviates the issues of the overburdening of provincial courts. Adding Crown flexibility will add another tool in the tool kit of the administration of justice in order to ensure that the procedures followed will result in efficiency, but also justice.
For those reasons, I can't agree with my friend on those points.
4:05 p.m.
NDP
Murray Rankin NDP Victoria, BC
I think those were points well made by Mr. Fraser. I certainly agree that the changes to the administration of justice offences will go a long way. My review with attorney general officials in my province is that this is an enormous downloading exercise, notwithstanding the excellent point he made.
The other concern, which I didn't raise, is one that was raised by Emilie Taman, who appeared before us. It's a twofold one.
First of all, Mr. Fraser pointed out that we're giving a lot of discretion to the Crown attorneys to make these decisions, but as Mr. Cooper said, that is done in an entirely secret way. They have no accountability for that decision. If it were the judges that had the discretion in sentencing—as they've had for decades, if not centuries—they would give reasons and provide some kind of accountability. Now it's people in backrooms who will decide whether they proceed one way or the other. She made that point.
She also made the point that where the Crown proceeds summarily the accused has no option of forum and is not entitled to a preliminary inquiry or trial in the superior courts. The Crown can seek more jail time without the accused having the option of being tried by a jury or the option to proceed in the higher court.
I think this whole enterprise is wrong-headed. I think the solution, with great respect, would have been what the mandate letter of the minister required her to do, which was to get rid of the mandatory minimums and give the judges the tools they've always enjoyed. That, I think, is a much more efficient way to do this and provides more accountability and transparency than this would ever do.