Justice Committee on Nov. 17th, 2016

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

Just as a very brief follow-up to my last round of questions, as Mr. MacGregor put it, there seems to be at best a level of ambivalence from the provinces. In your experience at the Department of Justice, have provinces been shy about expressing constitutional concerns with proposed legislation in the past?

[Laurie Wright]

It tends to be extremely context-specific. As my colleague mentioned, from our perspective, it was only early this fall that we started our outreach to talk specifically about the content of the bill with colleagues at our level in other jurisdictions.

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

I'm going back to past legislation. I believe you both have been with the department for quite some time. Even without the department reaching out, provinces generally aren't shy, wouldn't you agree, about advising the Department of Justice that they have concerns with particular legislation, especially if they believe it might interfere with provincial responsibility or jurisdiction?

[Laurie Wright]

The normal process for the development of policy across government that results in legislation would include within it outreach and consultations with provinces and territories as well as with stakeholders, civil society, and others. In the normal course of development of government legislation, there would certainly be opportunities for those kinds of considerations to be taken into account.

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

Thank you.

[The Chair, Liberal, Anthony Housefather]

I believe Mr. Fraser has a question.

[Colin Fraser, Liberal, West Nova, NS]

Yes.

Thank you very much, ladies, for being here.

I have a quick question with regard to the statement of the government's position on this that we were handed. The briefing reads, “Canada does not generally use criminal law-type prosecutions and penalties to address discrimination.”

I'd like to hear your comment on the fact that generally they are not used. Can you give examples of where the criminal law-type prosecutions and penalties are used to address discrimination? What examples are there in our law?

[Laurie Wright]

The closest analogy I can come up with are the provisions in the Criminal Code that are not based on penalizing discrimination but are the hate crimes and hate speech provisions. These are also geared toward preventing very serious activity that would be based on similar grounds that you would normally see in an anti-discrimination statute, but where the types of actions have risen to the level that they go beyond what's appropriate for that framework in terms of being addressed more under the criminal law.

[Colin Fraser, Liberal, West Nova, NS]

Thank you. That's it.

[The Chair, Liberal, Anthony Housefather]

Does anyone else on that side have any questions?

During their testimony, the sponsors of the bill made an analogy with respect to the anti-spam law, noting that heavy fines were levied for companies that created spam. Can you distinguish that law from this proposed law?

[Laurie Wright]

As I understand it, the anti-spam legislation is not perceived as a criminal law power. It is a trade and commerce-based statute. It is based on compliance and heavy fines intended to stop deep pockets from carrying out certain kinds of activities.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

We've done one round and now the bells are ringing, but if we're going until 15 minutes before, then we have 11 more minutes.

Members of the committee, do you have any other questions for this witness? We'll just go to anybody who has questions.

Mr. Falk?

[Ted Falk, Conservative, Provencher, MB]

Yes.

Could you expand just a little more on whether the fines that are being proposed in this bill are consistent with other fines within the Canadian Human Rights Act? How much of a variance is there?

[Laurie Sargent]

Obviously, it would be impossible to do a comprehensive survey of all the different penalties in the Criminal Code and in other criminal-based legislation. One thing that does jump out is that even on a summary conviction, the proposed fine of, I think, $300,000 and potential imprisonment of up to 12 months is higher than pretty much anywhere else, based on the survey we did. Fines usually tend to be below the $100,000 range, but it varies of course, and imprisonment tends to be up to six months. They are of course higher than those that, on average, would be found in the Criminal Code.

Picking up on your question, I want to add one piece, which is that when one looks at Criminal Code provisions, generally they are more focused on intentional actions or intentional harm being committed, usually resulting in some form of physical or “security of the person” impact or economic harm.

It's helpful to think about what different types of activities are being criminalized and what the commensurate penalties are. Again, though, I'm not in a position to provide a comprehensive overview of the different penalties provided for.

[Ted Falk, Conservative, Provencher, MB]

Would you please expand as well, Ms. Wright?

[Laurie Wright]

I just want to add that normally the purpose of the human rights anti-discrimination legislation is remedial, so it's primarily focused on the kinds of remedies that bring the parties together and reconcile them in terms of what the action was as opposed to being a penal kind of legislation that has huge fines and penalties. There is a possibility, under the Canadian Human Rights Act, for some penal action to be taken against those who have committed discrimination, but the primary purpose is remedial.

[Ted Falk, Conservative, Provencher, MB]

Okay, thank you.

Thank you, Mr. Chairman.

[The Chair, Liberal, Anthony Housefather]

Does anyone else have any questions?

Mr. MacGregor.

[Sean Casey, Liberal, Charlottetown, PE]

Mr. Chair, if I'm not cutting into anyone's time, may I have permission to ask a question?

[The Chair, Liberal, Anthony Housefather]

Mr. MacGregor had his hand up first, and then, Mr. Casey, if there is no objection, we'll let you ask.

Mr. MacGregor.

[Alistair MacGregor, NDP, Cowichan—Malahat—Langford, BC]

I'll make it quick.

I just want to do some comparison here. Part X of the Criminal Code deals with specific prohibited activities that relate to contracts. It prohibits certain types of behaviours and actions relating specifically to contracts. Technically, how do the prohibitions in this bill with respect to contracts differ from what is already prohibited in the Criminal Code?

[Laurie Wright]

I'll say first that I'm not a criminal law expert, so I am here largely to address some of the other elements of the bill.

Second, on principle, it would be necessary to look at the kind of behaviour and the severity of the action that's being taken with respect to the contract. For example, fraud would be one of those kinds of things. That would be the way I would approach the question.

[Alistair MacGregor, NDP, Cowichan—Malahat—Langford, BC]

Okay, thank you.

[The Chair, Liberal, Anthony Housefather]

Does the committee agree that Mr. Casey can ask a short question?

[Some hon. members]

Agreed.