I am.
Evidence of meeting #28 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 driver.
A recording is available from Parliament.
Evidence of meeting #28 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 driver.
A recording is available from Parliament.
12:45 p.m.
NDP
12:45 p.m.
Counsel, Criminal Law Policy Section, Department of Justice
I am in criminal law policy—
12:45 p.m.
NDP
Murray Rankin NDP Victoria, BC
I think it's fair for us, if there has been charter analysis, and it seems to me you're alluding to the existence of that.... I think we would be derelict in our duties not to have the benefit of that input.
12:45 p.m.
Liberal
12:45 p.m.
Counsel, Criminal Law Policy Section, Department of Justice
I'm going to ask you to appreciate that lawyers in the Department of Justice give their legal and policy advice to the Minister of Justice and Attorney General of Canada, and if we breach our duty of confidentiality, we would be at risk for consequences possibly in our employment, and certainly I would be at risk for consequences with my law society, the Law Society of Manitoba. So I would not want to share charter advice.
I could also add that I'm well aware that committees themselves, at least in the Senate in 1985, took advice independently on constitutional questions related to the gambling provisions of the Criminal Code and amendments that were being proposed by the government of the day.
That's my answer to the question.
12:50 p.m.
NDP
Murray Rankin NDP Victoria, BC
Your answer to the question is that it would be improper for you to provide an opinion on that, and that your duty of confidentiality and the fact that it's not your area would preclude you from doing that.
I'm saying, then, as a member of this committee, I feel very reluctant to proceed in the face of not having such charter testimony. The whole thing is about the charter viability of it. If we're not going to get that from the Department of Justice, Mr. Chair, I would ask that we obtain counsel to find this out.
12:50 p.m.
Liberal
The Chair Liberal Anthony Housefather
We are going to be hearing from Professor Hogg, who will be giving his opinion about the constitutionality of the bill, and at the end of hearing from the witnesses, we can certainly discuss as a committee what we want to do, whether it's asking the Minister of Justice for any information or asking....
We can always ask.
12:50 p.m.
NDP
Murray Rankin NDP Victoria, BC
I understand. I just feel it is surprising that we don't have, to this point, testimony from the Department of Justice on such a central feature before the committee. As you know, I have the greatest respect for Professor Hogg, but that's not who is advising the government on whether this bill is appropriate or not.
I'll leave it there.
On the issue of vehicular homicide, the renaming of this offence, do you have anything to say about how that, in your judgment, might affect those who are providing sentencing, that is, judges, or how that would affect the accused and victims?
12:50 p.m.
Counsel, Criminal Law Policy Section, Department of Justice
I think I need to preface the remarks I have with a few observations. The first observation is that, in referring to “vehicular”, when the offences in the Criminal Code speak of motor vehicles, vessels, aircraft, and railway equipment, it seems to narrow the current offence to simply vehicles.
When it comes to the word “homicide”, currently the Criminal Code distinguishes between homicides that are culpable under the criminal law and homicides that are pure accidents and non-culpable under the criminal law. In the area of culpable homicides, we have murder, we have infanticide, and all others are manslaughter. It could be said that the proposal in the bill would diffuse the current wording and put it into a more general term, “homicide”, rather than referring to the specific offences of driving while impaired or operating a vessel, railway equipment, or aircraft while impaired.
12:50 p.m.
NDP
Murray Rankin NDP Victoria, BC
Mr. Pruden, is it therefore your view that, ironically—and I know this wasn't the intention—this bill could limit our ability to go after people for impaired operation of aircraft, railways, and the like, and that an unintended consequence would be that by calling it “vehicular homicide” we may cast doubt on whether those other offences could be proceeded with?
12:50 p.m.
Counsel, Criminal Law Policy Section, Department of Justice
No. The bill does not alter paragraph 253(1)(a), which sets out the impaired operation of the various modes of transport, nor does it alter paragraph 253(1)(b), which refers to operating one of these modes of transport while over the criminal legal limit of 80 milligrams. However, what it does is to propose that in section 255, the two separate and distinct offences, when there is a death, should be referred to as “vehicular homicide”. So the two separate offences would now, in section 255, be referred to as simply under the one name of “vehicular homicide”, which would be unique in the Criminal Code.
12:50 p.m.
Counsel, Criminal Law Policy Section, Department of Justice
It's more than a drafting issue. The bill proposes that “vehicular homicide” be used as a term, and I'm suggesting that “vehicle” or “vehicular” narrows what currently exists and “homicide” expands greatly what currently exists.
12:50 p.m.
Liberal
The Chair Liberal Anthony Housefather
Mr. Pruden, I think that what Mr. Rankin is suggesting is that if you change the word “vehicular” to include the whole list of motor vehicles, planes, or whatever that long list was, you would avoid that and it's a drafting issue.
12:50 p.m.
Counsel, Criminal Law Policy Section, Department of Justice
That fixes that drafting issue. You run into the second problem of “homicide”—
12:50 p.m.
Counsel, Criminal Law Policy Section, Department of Justice
—being a nebulous, broad term. I shouldn't say “nebulous”, but it's a broad term.
12:55 p.m.
Liberal
Chris Bittle Liberal St. Catharines, ON
I have a follow-up on that point. If we changed it from “vehicular” and defined “vehicular” in this bill and changed it to perhaps “vehicular manslaughter”, would that address the concerns of the department?
12:55 p.m.
Counsel, Criminal Law Policy Section, Department of Justice
It still is very broad, because dangerous driving is a form of “vehicular”—or any other mode of transport—“homicide”. So is “criminal negligence causing death” when you have one of these modes of transport involved. It just broadens it. I don't know that there is a way to make it less broad. If those are the terms that are wanted, “vehicular manslaughter” or “homicide”, they're broader than what the Criminal Code currently sets out. The Criminal Code refers to the two specific provisions, the impaired driving and the over-80 driving.
12:55 p.m.
Liberal
Chris Bittle Liberal St. Catharines, ON
I'd like to clarify—and perhaps I didn't quite understand it—and follow up on Mr. Rankin's question.
If we're broadening the terms, but you're suggesting that there will be no consequence, could you explain to me what the consequences, if any, would be? If this term were adopted by Parliament, what consequences would there be, as you see it, in the criminal law?
12:55 p.m.
Counsel, Criminal Law Policy Section, Department of Justice
The consequence would be that you'd have one term covering two offences, which is unique and unusual. I don't know of any other place in the Criminal Code where that is done, where two offences are referred to by one name.
Whether it would impact upon judges would be speculative. I can't guess as to what judges might do with a change by Parliament in giving, in section 255, a new name for the two provisions, but keeping in section 253, a different name: the current different names for the two provisions.
12:55 p.m.
Liberal
Chris Bittle Liberal St. Catharines, ON
Okay.
You mentioned police agencies were likely not going to act on passive detection without a Criminal Code authorization. Do you know of any police agencies that are requesting this device?
12:55 p.m.
Counsel, Criminal Law Policy Section, Department of Justice
I'm not aware, although I did hear the earlier testimony that indicated there is at least one police agency that is supportive of the bill.