Justice Committee on Feb. 21st, 2019

[The Chair, Liberal, Anthony Housefather]

Good morning, everyone, and welcome to the meeting of the justice committee that everybody is waiting for today. Our discussion is on Bill C-84, an act to amend the Criminal Code with regard to bestiality and animal fighting.

I'd like to welcome the student group here today—it's great to have you. I think all the committee members are excited to have so many people in the room on our clause-by-clause on the bill. Clause-by-clause means that we're going through amendments to a bill. This is a bill that was proposed by the government, and different committee members have heard from witnesses and will now be proposing amendments.

It's a pleasure to have Mr. Davies and Mr. Erskine-Smith join the members of the committee this morning.

It's also a pleasure to be joined by witnesses from the Department of Justice: Madame Carole Morency, director general and senior general counsel; and Ms. Paula Clarke, counsel, criminal law policy section. Welcome, both. You will be helping us if we have questions on any of the amendments.

We'll now get to the list of amendments.

(On clause 1)

The amendment we have to clause 1, LIB-1, is essentially the identical point as PV-2, NDP-2 and CPC-1, just put in a different part of the code. It has exactly the same effect, to apply rules to a conviction in the bestiality section that people can't own animals.... Those rules were in different sections and didn't apply to this offence. Each of these amendments—PV-2, NDP-2 and CPC-1—would become moot if LIB-1 was adopted, because it achieves the same thing.

Mr. Erskine-Smith, this is your amendment. You have the floor.

[Nathaniel Erskine-Smith, Beaches—East York, Lib.]

It's pretty straightforward. Others have proposed similar amendments. It's to get at what witnesses brought forward, and I think there was unanimity on this subject. I'll leave it there. I think it speaks for itself.

[The Chair, Liberal, Anthony Housefather]

Mr. Davies.

[Don Davies, NDP, Vancouver Kingsway, BC]

Thank you.

The NDP supports this motion, obviously. We have an identical motion.

I had a question about drafting. In proposed paragraph 160(5)(b), the wording says to compel the “accused” person to pay for the care of the animal they allegedly injured, and we're wondering if that's the proper terminology. By definition, the person would have been convicted. You wouldn't compel an accused person to pay; you would compel the person convicted of the offence.

As a matter of drafting, I think that would be a concern I'd raise with my colleagues, to see if we should change that.

[The Chair, Liberal, Anthony Housefather]

That's perhaps for the department officials.

Madame Morency or Ms. Clarke, could you comment on that? I think that language is already in the Criminal Code in a different section. Could you explain why it's “accused” and not “the person convicted”?

[Paula Clarke, Counsel, Criminal Law Policy Section, Policy Sector, Department of Justice]

The language used in the motion is identical to the language that's already used in section 447.1. The term “accused” is used simply because it's used in other areas in the Criminal Code. I believe the term “convicted individual” is not used in the code.

As well, if you look at the chapeau in subsection 447.1(1), it says, “The court may, in addition to any other sentence that it may impose”, so that would lead the court to conclude that there has to be a conviction.

[The Chair, Liberal, Anthony Housefather]

I understand.

Mr. Erskine-Smith.

[Nathaniel Erskine-Smith]

Obviously, this is drafted by legislative drafters, and I know there was some conversation about redundancy in “animal” versus “bird”. I wonder if you could comment as to whether it makes sense to just say “as an animal” and delete “or a bird”.

[Paula Clarke]

Yes, we would support removing the phrase “or a bird”. In section 160, the definition of bestiality does not include “or a bird”, so that would be consistent with the terminology in the section.

[Nathaniel Erskine-Smith]

I hadn't caught it in the first instance, but I think it makes some sense to amend it by striking “or a bird” after “as an animal”, in both 160(5)(a) and 160(5)(b). In proposed paragraph (b), I think it occurs twice, but in each instance striking that makes sense, given section 160.

[The Chair, Liberal, Anthony Housefather]

So in proposed paragraph 160(5)(b), you're proposing to strike “or a bird” in lines 3 and 4.

[Nathaniel Erskine-Smith]

In lines 3 and 4, and then again in the second-to-last line there.

[The Chair, Liberal, Anthony Housefather]

And in proposed paragraph (a), it would be in the third line.

[Nathaniel Erskine-Smith]

It's the third line, yes. I think it makes sense.

[The Chair, Liberal, Anthony Housefather]

Mr. Davies.

[Don Davies, NDP, Vancouver Kingsway, BC]

I think we are talking about two issues here. I'll go back to the point I was making earlier.

I don't think it's a huge issue, but I'm looking at other sections of the Criminal Code, in particular sections 740 and 741, under “Restitution”. They use the term “offender”: “An offender who fails to pay all of the amount” and “the court is considering ordering the offender to pay a fine”.

We all know what it's meant to mean, but I'm wondering if this section shouldn't say “compel the offender to pay for the cost”. Maybe that's a better term than “accused”. I still think “accused” is not the proper term to be used here.

[The Chair, Liberal, Anthony Housefather]

Ms. Morency.

[Carole Morency, Director General and Senior General Counsel, Criminal Law Policy Section, Policy Sector, Department of Justice]

I would agree.

In terms of the basis or the rationale, the model used for it is the one that exists now in section 447.1, and there it does use “the accused”, but the point is correct. Today, if everything were to be completely modernized and updated, normally the language would be “the offender”, because this is part of the sentence that is imposed on the person who is convicted.

The point that my colleague made was that what is missing from LIB-1 right now is the language that appears in 447.1, in the chapeau, which is “in addition to any other sentence that it may impose under”. That's important, I would suggest, for the committee to consider, because it is a clear signal to the court that this is part of a sentence that should be imposed. There is that other distinction the committee may want to consider.

[The Chair, Liberal, Anthony Housefather]

Are you proposing we start this sentence by saying, identically to 447.1, “The court may, in addition to any other sentence that it may impose under subsection 445(2)”?

[Carole Morency]

It would end with.... It would be, “in addition to any other sentence that it may impose”, then comma, and then you have (a) and (b), with the changes that have been noted about the deletion of “or a bird”.

One of the other distinctions would be.... Perhaps the legislative drafters would comment that normally you would put sentencing provisions together in a provision. Here, you have the definition that Bill C-84 is proposing as subsection 160(4), and LIB-1 would propose to put the additional penalty provision after the definition. In the end, I guess it's all there, but it's probably a drafting thing.

[The Chair, Liberal, Anthony Housefather]

Mr. Erskine-Smith.

[Nathaniel Erskine-Smith]

Just for clarity, because I'm more comfortable with respect to ordering payment that it be the offender.... Is that the only paragraph, or are you also suggesting that the prohibition “from owning, having the custody or control of or residing in the same premises” would be about “offender” versus “accused”? I can understand there why it might actually be “the accused” in some instances.

[Don Davies, NDP, Vancouver Kingsway, BC]

I had caught it specifically in proposed paragraph (b).

[Nathaniel Erskine-Smith]

Yes, that makes more sense.

[Don Davies, NDP, Vancouver Kingsway, BC]

That's the only one, but I see what you mean. It depends on whether you're thinking that there could be an order made pending conviction.