Justice Committee on May 9th, 2016

[The Chair, Liberal, Anthony Housefather]

Thank you very much, Ms. Klineberg.

Mr. Hussen.

[Ahmed Hussen, Liberal, York South—Weston, ON]

I want to ask a question of the officials.

[Garnett Genuis, Conservative, Sherwood Park—Fort Saskatchewan, AB]

I don't know if you can because you're not a committee member.

[An hon. member]

Neither is Mr. Casey.

[The Chair, Liberal, Anthony Housefather]

Mr. Casey was allowed to intervene to give the opinion of the government. I will judge that on a case-by-case basis.

I'm allowing you, though you're not a member of the committee, to propose motions. I'm not allowing interventions by just anyone at the table on anything, otherwise we're going to go into—

[Garnett Genuis, Conservative, Sherwood Park—Fort Saskatchewan, AB]

On a point of order, Mr. Chair.

It's perfectly reasonable if the committee decides that non-members can't speak outside of moving their own amendments, but there should be a consistent policy.

It was the decision of the government not to put their parliamentary secretaries on as members of committees. That was their choice. Traditionally, they have sat as members of the committee. As long as government members are not members of the committee, for them to have privileges as members that other non-members don't have is inconsistent and unfair to the opposition parties.

[The Chair, Liberal, Anthony Housefather]

Your point is noted. I am trying to be, as best as I can, scrupulously fair to everyone in this process, including allowing people who put forward motions to speak, which we could have not allowed. I accept your comments on that. I will be judicious in recognizing people who are not on the committee.

Mr. Falk.

[Ted Falk, Conservative, Provencher, MB]

I agree with Mr. Genuis's evaluation of the situation. The government did make a decision not to put their PSs on the committees and I think we need to respect that.

[The Chair, Liberal, Anthony Housefather]

I understand. Again, going forward, I appreciate that.

On this very unusual occasion, because I allowed Mr. Genuis to chime in, I'm going to allow Ms. May to chime in.

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

When one has a longer institutional memory than the last 10 years, it is not traditional to have parliamentary secretaries on committee. It was something that was only done under the previous Conservative majority. When we're going through clause-by-clause, it's appropriate to allow the parliamentary secretary to intervene, to explain the government position, and that does not represent inconsistency. In this matter, I want to put the longer historical view forward and agree with your decision, Mr. Chair.

[The Chair, Liberal, Anthony Housefather]

Thank you. Again, I'm going to be judicious. If I believe there is something that needs to be responded to, I may allow it. If there's something I believe that you need to say, I may allow it.

In this case, we're debating an amendment that Mr. Rankin has put forward. You have three Conservative members who are here who, theoretically, could debate it. You could always sub in for one of them if you really feel that you need to debate something. There is an alternative which, for example, members of the Bloc and the Green Party don't really have.

Let's try to figure out the right solution for this.

In the meantime, we're on Mr. Rankin's amendment.

Mr. Hussen.

[Ahmed Hussen, Liberal, York South—Weston, ON]

It's not debate. I want to put a follow-up question to Ms. Klineberg, if I may.

Regarding the reasonable standard, in my limited knowledge, isn't there a reasonable standard based on the circumstances of the offender at the time that the offence took place? We're talking about the second part, right?

[Joanne Klineberg]

Yes, reasonableness is always in the circumstances that the person found them in. The question is, imagine another reasonable person in those circumstances, would they have formed the same belief?

[The Chair, Liberal, Anthony Housefather]

Is there any other discussion?

Then we will come back to the mover. Mr. Rankin.

[Murray Rankin, NDP, Victoria, BC]

I'll simply say that I understood the explanation by the departmental official about the law of self-defence. I'm not entirely sure this is applicable in the circumstances. I'm trying to get my head around whether this is a subset of the self-defence defence. I was very persuaded by what the defence lawyer said at the time, and I wanted to bring it forward today, because of their powerful intervention. I can't say any more than that. You all heard the same testimony.

[The Chair, Liberal, Anthony Housefather]

Fair enough, and it's now before the committee to vote on.

(Amendment negatived [See Minutes of Proceedings])

(Clause 2 agreed to [See Minutes of Proceedings])

(On clause 3)

We have Parti Vert-1.

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

Thank you, Mr. Chair.

I will say, briefly and parenthetically, that the process by which you're giving me an opportunity to speak to my amendments is part of the motion the committee passed. This was identical to the motion developed under the previous government to deny me the rights I really want, which are to put forward amendments at report stage. Coming to committee with amendments is not the process I would have liked. As an example of why it's so impractical, I wasn't even able to get to this committee to ask that you not pass the motion, because I was simultaneously at another committee where they were dealing with the same motion.

I propose to amend the language found in clause 3, line 21, by replacing the word “counselling” with “persuades or encourages”.

I know the committee will remember the evidence from a number of groups, like the Canadian Psychological Association and the Canadian Association of Social Workers. They pointed out that using the word as it currently reads in 241(1)(a) “counsels a person to die by suicide” still makes one guilty of an indictable offence.

The Canadian Psychological Association pointed out that the word “counsel” has a specific legal and professional meaning. In their brief, they say that “mental health providers like psychologists can be said to regularly provide counselling to their patients”. In this sense, “counsel” has a different meaning than that intended by 241(1)(a).

The amendment I put to you is from their brief. The purpose is to avoid using a professional term that will be used in the course of their work to provide counselling and to replace it with the more precise term, which I think is the point of this section of the bill, namely, to ensure that anyone who persuades or encourages a person to die by suicide is not within the scope of the exceptions in the Criminal Code.

[The Chair, Liberal, Anthony Housefather]

Thank you.

Mr. Fraser.

[Colin Fraser, Liberal, West Nova, NS]

I will not support this amendment. I understand the rationale behind it. Liberal-1, which I'll be moving later on, and which slightly changes the wording in the package, will address this issue. We heard from witnesses on this point. With regard to changing the wording to “persuades or encourages”, I'm concerned that we'd be changing, fundamentally, a term that is known to the criminal law and has been interpreted by the courts. We'd be capturing, perhaps, people who were not meant to be exonerated for certain criminal activity.

Since the word was carefully chosen and has been interpreted for quite a long time in the criminal law, I think it should remain as it stands, and I hope we can address the problem in Liberal-1.

[The Chair, Liberal, Anthony Housefather]

Mr. Rankin.

[Murray Rankin, NDP, Victoria, BC]

I will speak in favour of the proposed amendment for the reasons that the mover suggested. Social workers, possibly nurses, certainly the psychologists were all saying that to apply a term used in the criminal law to day-to-day life would be hugely problematic. Finding a simpler way to say it, a plain language way, improves the wording. The words “persuades or encourages” does the job without causing the unnecessary concern. So I suggest that it makes sense to make this change.

[The Chair, Liberal, Anthony Housefather]

Mr. Nicholson.

[Rob Nicholson, Conservative, Niagara Falls, ON]

What Ms. May is saying is quite reasonable, and it's consistent with some of the concerns we heard at the committee. One of my colleagues says he prefers to keep it as a legal term. That was part of the challenge Ms. May was bringing to our attention just now; so this is a reasonable amendment and should be supported.

[The Chair, Liberal, Anthony Housefather]

What is the legal definition of “counsels” in the Criminal Code?

[Joanne Klineberg]

“Counsels” is a word that's been part of the criminal law for decades, if not centuries. There is a definition of “counsels” in section 22 of the Criminal Code that applies throughout the code, so it's also not a word that is limited to being used in the context of section 241. It applies in a variety of other places.

It's been interpreted by the Supreme Court to essentially mean “actively inducing a person with the knowledge that the thing you're inducing them to do might happen”. In law there's no possible way that the word “counsel” in this provision can be interpreted to mean therapeutic counselling. If the word is changed, there is a danger that it would need to be reinterpreted. It would be Parliament indicating that it means something different from “counsel” as “counsel” appears in other provisions of the Criminal Code.

The other thing I would note is “abet” in subsection 241(1) is interpreted to mean “encourages”. So this amendment would create some uncertainty over how “abet” should be interpreted if “encourages” is also added. The final point I would make about this amendment is that “persuades”—unlike counselling, which is how a person tries to convince someone else to do something—“persuade” might be limited to the circumstances where they succeed in getting that other person to do the thing they said.

So it doesn't say “attempts to persuade”, it just says “persuade”. Persuasion might have to be successful for persuasion to be made. So there are some criminal law implications for this one.