Justice Committee on May 10th, 2016

[Murray Rankin, NDP, Victoria, BC]

No, I'm just making the same point. I don't know what an advance request is. I'm comfortable leaving it. I just asked for clarification. It was only to see if you're comfortable that the term has meaning. It's not defined anywhere. It appears in a criminal code. It's a bit odd. I just put that out there.

[The Chair, Liberal, Anthony Housefather]

I would think that the Minister of Health and the Minister of Justice would probably have a common understanding, in the same sense as we would, as to what this actually means in the context of the act, but obviously, I'm prepared to receive any subamendment that is proposed to substitute any other wording.

While you're thinking about it, Mr. Rankin, I believe Mr. Genuis wanted to say something.

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

Yes, I just wanted to say this, and maybe ask the officials about it.

When we discussed the amendment about death certificates, the point was made that to have a “must”, a requirement of the minister in the Criminal Code, was unusual and raised some issues. So we changed the wording in that case to “may”.

The proposed amendment, on the other hand, does use a Criminal Code provision to instruct the justice minister. I wonder if in this case you would regard that as common or appropriate, and if language like “may” would be more appropriate in this case, given what we decided in the case of the other amendment?

[Joanne Klineberg]

The first thing I would note is that the location of this clause in 9.1 is such that the text of this clause would not actually go into the Criminal Code. It's a part of the bill, but it's not an amendment to the Criminal Code to insert this into the Criminal Code.

In theory, yes,“must” has the same challenges, in the sense that it raises the question of what would be the mechanism for enforcing it if it didn't happen. There's at least a timeline, so there's a period by which it has to happen. If it doesn't happen though, the enforcement mechanism is still uncertain.

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

I can move subamendments, of course, but on the basis of clarity, I might suggest that a member of the committee make that change so that the public has a clear understanding of what the words actually mean in this context.

[The Chair, Liberal, Anthony Housefather]

Well, if a member chooses to do that, then a member may choose to do that. I'm going to look to the members.

Mr. McKinnon.

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

What subamendment would you propose?

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

To replace “must” with “may” in line 2 of the amendment. I think that makes the same change that we made in a similar context elsewhere.

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

I don't have a problem with that amendment. I'm just not sure it does anything.

I mean, the Minister of Health and Minister of Justice may do this anyway. We're not really extending them anything. I think what we're trying to do is make a recommendation to them.

Is there more common phraseology for making a recommendation, that the minister give us a report “at some point in time”?

Can anyone answer that?

[The Chair, Liberal, Anthony Housefather]

Ms. Khalid.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

To clarify, I think the prior amendment that Mr. Genuis is referring to dealt with a provincial jurisdictional matter. We were talking about proposing regulations that may be more of a collaborative approach with respect to the provinces.

I think this is a little different, in that we are not talking about any jurisdictional issue with respect to provinces and are really enforcing within the department and within the ministries for such a report to take place.

[The Chair, Liberal, Anthony Housefather]

Mr. Warawa.

[Mark Warawa, Conservative, Langley—Aldergrove, BC]

I think the suggestion of changing the word “must” to “may” is a good one.

It provides, as a part of Bill C-14, clear direction to the ministers of Health and Justice, but it does not bind them. It provides a suggested direction—gives them the discretion of who is the lead on this. It gives them discretion, if 180 days is not a practical date and maybe 270 days is more practical. It gives them the discretion, as there are consultations ongoing with the provinces and territories. It gives them discretion as what the independent review would look like. I think it's a good suggestion to give them that latitude so that they're not bound. Otherwise, they're accountable but with no clear consequence if they don't meet that, but it could be embarrassing to the government or the minister.

Providing that discretion, I think is a good idea, and I would suggest a subamendment of changing it from “must” to “may”. I'd like to move that.

[The Chair, Liberal, Anthony Housefather]

Basically, Mr. Warawa has put forward a subamendment to change the word “must”, in line 2 of the new clause 9.1, to “may”.

Now the debate is on the subamendment.

Mr. Bittle.

[Chris Bittle, Liberal, St. Catharines, ON]

Thank you, Mr. Chair.

I appreciate Mr. Warawa's concern about embarrassment to the Minister of Health and the Minister of Justice. It touches my heart.

However, I think this is something that the ministers have committed to and we should go forward on. I think it's something that they should be compelled to do, and it's to begin this. This isn't a complete report in 180 days. It requires them to begin, and I think it's an excellent step. It shows willingness to hear from concerns of Canadians, and that Canadians want to see action and look forward to seeing that report being initiated 180 days after the act receives royal assent.

[The Chair, Liberal, Anthony Housefather]

Mr. McKinnon.

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

I was going to suggest that as a subamendment we use “is requested to”, but I don't really have a strong objection to keeping it the way it is, or the amendment itself.

[The Chair, Liberal, Anthony Housefather]

When a subamendment is on the floor, you can't suggest a subamendment to the subamendment. It's out of order.

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

I'm not saying that. That's what I would have said, if—

[The Chair, Liberal, Anthony Housefather]

Mr. Genuis, briefly.

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

I appreciate your indulgence.

I just want to be clear. The point of my suggesting the subamendment was not to say that the minister should or shouldn't be compelled. The officials' advice is pretty clear that we cannot compel the minister through the section.

I think on that basis, the word “must” is misleading. It's not that it's substantively different, but it implies an obligation on the ministers that doesn't actually exist. I think “may” works. I think that if this subamendment is defeated, a subamendment that replaces “must” with “should” would provide what I think maybe both sides are looking for.

It's just that this section effectively does not compel the minister, so to say that it does or to say that it could is, I think, not really on point.

[The Chair, Liberal, Anthony Housefather]

Mr. Fraser.

[Colin Fraser, Liberal, West Nova, NS]

With regard to the subamendment, while I appreciate the apparent inconsistency with what was stated earlier, I don't think it was that it cannot happen. I thought it was that it was unusual the wording would be different. More important is the fact the previous use of the word “may” rather than “shall”, in regard to the minister's discretion, was dealing with setting out a regulatory scheme or framework with which the minister was able to make regulations.

That's quite a bit different than this, which is clearly for one purpose, and that is for a study to be commenced within 180 days. I think therein lies the difference. I would not support the subamendment.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Mr. Falk.

[Ted Falk, Conservative, Provencher, MB]

As a matter of consistency with what we've been doing thus far, when we take it and change the word “must” to “may”, because we don't want to give definitive direction to the minister, it has no teeth to enforce it. The same situation arises here. There's no means of enforcing this “must”. There's no means to be able to provide any meaningful impact for the word “must”.

I don't think legislation in this House has often been used to give direction to a minister of the crown, and not so definitively.

I think we should stick with the wording we used before, which was “may”, and then the minister can decide.