Exactly.
Evidence of meeting #131 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 offence.
A video is available from Parliament.
Evidence of meeting #131 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 offence.
A video is available from Parliament.
9 a.m.
NDP
Don Davies NDP Vancouver Kingsway, BC
I think it's broader in (a), so it should be “accused” there, but (b) should definitely be “offender”.
9 a.m.
Liberal
The Chair Liberal Anthony Housefather
I am wondering about the inconsistency between this clause and the existing section of the Criminal Code. I assume that if I'm incredibly lenient, we could then propose another amendment to amend that section of the Criminal Code as well, but given the fact that the court would have to impose a sentence in order to get there, is there any possibility that someone who has not been convicted would be touched by the word “accused” in (b)? The court must be imposing a sentence in order to get there.
I agree that the word “offender” is better, but I'm just wondering about having the same paragraphs in two sections of the Criminal Code with inconsistent wording.
Mr. Davies.
9 a.m.
NDP
Don Davies NDP Vancouver Kingsway, BC
I'm not sure where the inconsistent references you're referring to are. Could you help me with that?
9 a.m.
Liberal
The Chair Liberal Anthony Housefather
This is a cut and paste from paragraphs 447.1(1)(a) and 447.1(1)(b), which are under “Order of prohibition or restitution”.
9 a.m.
NDP
Don Davies NDP Vancouver Kingsway, BC
Are you're saying, Mr. Chair, that some of the section still uses the term “accused”?
February 21st, 2019 / 9 a.m.
Michael Cooper St. Albert—Edmonton, CPC
It's for the current section 447.1.
9 a.m.
Liberal
The Chair Liberal Anthony Housefather
Yes, exactly. It's (a) and (b).
I don't want there to be a question of interpretation as to whether we meant something different by this section—
I'm sorry. Go ahead, Ms. Morency.
9 a.m.
Director General and Senior General Counsel, Criminal Law Policy Section, Policy Sector, Department of Justice
Thank you.
Just as a general approach, certainly modelling the other provision that's there now would help with the consistency so that you are ensuring that, to the extent the existing provision has been interpreted and applied, courts will be looking to implement it in a consistent manner, and you will avoid some of the potential that may come from different language and any unintended consequences.
The other thing I would note.... I would remind the committee that section 2 of the Criminal Code does define “offender”; “accused” does not have a definition, but we know what it means. “Offender” means:
a person who has been determined by a court to be guilty of an offence, whether on acceptance of a plea of guilty or on a finding of guilt
On balance, then, if the department were asked whether there is a preference, generally we would tend to go with using the existing model, just to ensure that you more likely have consistent application of a similar provision.
9:05 a.m.
Michael Barrett Leeds—Grenville—Thousand Islands and Rideau Lakes, CPC
To Mr. Erskine-Smith's point, is your intention, for people who have been accused, that an order be placed while they are awaiting trial? Would that typically be handled through release conditions by a judge while they're awaiting trial? Was that the intention, to compare the sentencing with awaiting sentence?
9:05 a.m.
Beaches—East York, Lib.
Honestly, the intention was just to take what we heard and to take the wording that existed in the code and apply it to this section.
Mr. Davies, I think, raised a good point. My point in drawing the distinction between proposed paragraphs (a) and (b) is that I can imagine a court wanting to make an interim order to prevent an accused—pending conviction and pending trial—from owning an animal if there is a serious offence and a prima facie basis for doing so.
There's no great intention, other than that it made sense to copy and paste, but copying and pasting appears to be more complicated than that.
9:05 a.m.
Liberal
The Chair Liberal Anthony Housefather
Just so we know where we are right now.... Mr. Erskine-Smith, in addition to the language you're currently proposing, I assume you have deemed these friendly amendments and you are accepting them. In proposed subsection 160(5), instead of “The court may”, we're now saying “The court may, in addition to any other sentence it may impose”. As well, in all the places where it says “animal or a bird”, you're striking the words “or a bird”.
The conversation has been about whether or not we should replace the word “accused” with the word “offender” in proposed paragraphs 160(5)(a) and/or 160(5)(b), presumably (b) being more important than (a), I understand. The department has weighed in, saying that we create an inconsistency with the existing wording in section 447.1, which has already been interpreted. I don't know that anybody has ever heard of a problem with the interpretation that's been given to that section.
Therefore, may I make a suggestion, colleagues? I get the point, and I agree with Mr. Davies. However, given that this wording is in another part of the code, I don't know that it's wise to have two contradictory words, because then somebody is going to say there's a reason we did that.
Maybe we can just move, with that amendment, to debate. Is everybody in agreement with that amendment?
9:05 a.m.
Some hon. members
Agreed.
9:05 a.m.
Liberal
Ron McKinnon Liberal Coquitlam—Port Coquitlam, BC
I'm not in agreement with using the word “offender” instead of “accused”.
9:05 a.m.
Arif Virani Parkdale—High Park, Lib.
I have two points.
First, maybe Ms. Morency could comment on whether the current provisions under the code with respect to bail conditions prior to conviction being entered are flexible enough to allow for precisely what Mr. Erskine-Smith has been referencing, a prohibition in the interim from having possession of an animal.
Second, if we're looking at marrying the current 447.1 with Mr. Erskine-Smith's current amendment, there's also the issue of ordering. I think that was also raised by Ms. Morency.
9:05 a.m.
Liberal
The Chair Liberal Anthony Housefather
The department mentioned that the ordering leads to the same conclusion.
I don't think you're gravely concerned about the ordering, if I have that right.
9:05 a.m.
Director General and Senior General Counsel, Criminal Law Policy Section, Policy Sector, Department of Justice
That would be an issue for our colleagues, the legislative drafters, in terms of what the usual approach is. Ultimately, if the committee is concerned with the core elements that it wants to ensure are there, I think you can address it that way.
9:05 a.m.
Beaches—East York, Lib.
I have no strong views on ordering, as far as it goes. I defer to the drafters and their preferences.
9:05 a.m.
Liberal