Justice Committee on Oct. 29th, 2018

[Murray Rankin, NDP, Victoria, BC]

The objective was to have the two work together, designed to avoid long pretrial detention. If the judge doesn't think the person who committed the offence has any likelihood of conviction, they shouldn't be kept in pretrial detention. This particular section would apply to indictable offences, so it's a similar principle to the last one, as you said.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Is there any discussion? If not, let's have a vote on NDP-10.

(Amendment negatived [See Minutes of Proceedings])

(Clause 227 agreed to)

(On clause 228)

Then we move to clause 228. We have LIB-12. LIB-12 adds in form 12.

Mr. Fraser.

[Colin Fraser, Liberal, West Nova, NS]

This is just a clarification amendment, so that it makes it clear that form 12 is the correct form to be used.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Is there any discussion?

(Amendment agreed to [See Minutes of Proceedings])

(Clause 228 as amended agreed to)

(Clause 229 agreed to on division)

(On clause 230)

On clause 230, we have LIB-13.

Mr. Fraser.

[Colin Fraser, Liberal, West Nova, NS]

I think Mr. Boissonnault wants to speak to that one.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

Thanks, Mr. Chair.

This would amend clause 230 to add new paragraph (c), which would make non-communication a condition of a release order, effective from the moment it is made by the judge or justice. This amends provisions to non-communication orders. There's really a gap right now in the provisions. Specifically, a court cannot prohibit an accused from communicating with the specified persons during the time between when a release order is made and when the accused is released from custody. This motion proposes closing this gap, and that's why I support it.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Is there any discussion on LIB-13? Not hearing any, we'll move to a vote.

(Amendment agreed to [See Minutes of Proceedings])

(Clause 230 as amended agreed to)

It is carried but with me voting in favour.

(Clauses 231 to 235 inclusive agreed to on division)

(On clause 236)

We move to PV-31 and clause 236.

Ms. May.

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

Thank you, Mr. Chair.

This amendment is similar to the one that was submitted as PV-15. It's to eliminate the possibility of triggering a judicial referral hearing where a charge has been laid for a failure to comply with release conditions. If charged, it should go through a bail hearing system. As a corollary to that, the judge's powers under proposed subsection 523.1(4) to dismiss a charge after a judicial referral hearing would then be moot.

This deals with the risk of confusion or redundancy if a judge or justice must dismiss the charge, no matter what decision they make in the judicial referral hearing. This is similar to the government's intent in the summary of this bill, that the goal of the referral hearing was to provide “an additional tool to direct certain administration offences to a hearing, as opposed to laying new charges”.

This is one that I think actually clarifies C-75 to more perfectly meet the government's intent as described in the summary.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Is there any discussion? If not we'll go to a vote on PV-31.

(Amendment negatived [See Minutes of Proceedings])

We now move to PV-32.

Ms. May.

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

Again, this is one that will allow the accused the chance to trigger a judicial referral hearing. It will provide a way for an accused's defence counsel to pursue a way of diverting individuals who are currently likely to be criminalized as a result of administrative breaches into a non-criminalized system.

[The Chair, Liberal, Anthony Housefather]

Thank you very much, again. That was very succinct.

(Amendment negatived [See Minutes of Proceedings])

On PV-33, we have Ms. May.

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

Just to remind you of the testimony that led to this amendment, Dr. Myers, of Queen's University and the Canadian Bar Association found that this section in the bill, as currently drafted, is overly broad.

According to the Canadian Bar Association, this notion of emotional harm is vague and an unfamiliar concept to criminal law outside of a victim impact statement regime. It could work against the government's intention of reducing low-level administration of justice offences by capturing cases in the bail system that should have been diverted to the judicial referral hearing.

My amendment would remove “emotional harm, property damage or economic loss”, as experienced by a victim, as disqualifiers for people on bail.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Is there any discussion?

Mr. McKinnon.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

I would just like to ask the officials about “emotional harm” and whether that is a well-understood and sufficiently well-defined term.

[Shannon Davis-Ermuth]

Thank you.

That is a term that is defined for the purpose of the Canadian Victims Bill of Rights. The Canadian Victims Bill of Rights does deal with harm to victims, and specifically includes physical or emotional harm, property damage and economic loss.

In terms of emotional harm, we know that can be quite damaging to victims and could cover stuff like non-communication orders for victims who are living in fear of somebody who has harmed them. In that case, emotional harm could involve a breach of a non-communication order.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Ms. May.

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

I worked on the Victims Bill of Rights when it went through committee at the time. It has no application to the rights of a defendant who has been charged with a criminal.... With all due respect, this is not an application of emotional harm that has any relevance whatsoever to this situation or these hearings.

I would also say that the previous government's victims rights bill failed to protect the rights of victims. It should have been much stronger. It should have broadened some of the provisions that we have in other jurisdictions, that a victim has the right to be informed of certain things. To transport the idea of emotional harm from the Victims Bill of Rights into this legislation is egregious. I am very surprised to hear that being put forward by our technical experts here.

The Victims Bill of Rights is to give victims the opportunity to participate in the hearings, to know what their rights are and to show up at a certain time. The concept of emotional harm has never been used in assessing how to treat someone who is accused, and it goes quite against the notions of our basic concepts of criminal law and the presumption of innocence.

(Amendment negatived [See Minutes of Proceedings])

[The Chair, Liberal, Anthony Housefather]

We'll move to PV-34.

Ms. May.

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

PV-34, again, is based on the testimony that the committee heard from Dr. Myers from Queen's University. This amendment would bring the Criminal Code in line with the proposed change. I have referred to this a number of times with other amendments that I have brought forward, but this is very specifically in relation to the proposed change to the Youth Criminal Justice Act in clause 366 of this bill to require the Attorney General to determine whether the administration of justice charge should be pursued in any case where the substantive charge has been dismissed, withdrawn or stayed, or the accused acquitted.

This is the place where we can break the cycle where people are entering and remaining in the criminal justice system as a result of administration of justice offences only.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Is there any discussion?

[Colin Fraser, Liberal, West Nova, NS]

Just briefly, my concern with this amendment, and the reason I respectfully can't be supporting it, is that this takes away the discretion from the Crown to proceed in the appropriate cases where those charges should be proceeded with for breaches.

(Amendment negatived [See Minutes of Proceedings])

[The Chair, Liberal, Anthony Housefather]

We'll go to Liberal-14.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

Mr. Chair, it is an administrative change.

I have learned a lot at committee: that a comma matters, that “may” and “shall” matter. Today it's “and” and “or”. This is to swap one word for the other.

In clause 236, an "and" separates proposed paragraphs 524(2)(a) and (b). Since the hearing in question should be held in any of the circumstances listed under proposed subsection 524(2), the appropriate term to be used is “or”.

This amendment replaces “and” with “or” to ensure that the hearing can be held in any of the circumstances. That's why I am proposing LIB-14.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Is there any discussion on LIB-14?

(Amendment agreed to [See Minutes of Proceedings])

(Clause 236 as amended agreed to)

(On clause 237)

Now we move to clause 237. We have four amendments: PV-35, PV-36, PV-37 and NDP-11.

With regard to Green Party-35, if adopted, we could not move PV-36, PV-37 and NDP-11, for consistency.

On Green Party-35, we have Ms. May.

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

Thank you, Mr. Chair.

This proposes to add a subsection to require that the judge or justice consider whether the accused is likely to serve time in prison upon conviction. If the judge or justice determines that there is little or no prospect of that, they would be required to release the accused pending trial.

This again comes from testimony from a number of witnesses. It is really derived from a key quote in the Supreme Court of Canada decision in R. v. Antic, that, “An accused is presumed innocent and must not find it necessary to plead guilty solely to secure his or her release”.

That evidence was brought forward by the Canadian Civil Liberties Association and Dr. Myers of Queen's University, among others.

Thank you, Mr. Chair.