Justice Committee on Oct. 4th, 2017

[The Chair, Liberal, Anthony Housefather]

I call this meeting of the Standing Committee on Justice and Human Rights to order. I'd like to welcome everyone to the meeting.

Given the number of votes that we have today and the times that those votes are taking place, I think all of us would agree that we want to work quickly and diligently and do our best to move through this. If we don't finish by 7:30 p.m., I'll ask everyone's indulgence. Perhaps we might want to continue a bit later to finish today, so we don't have to come back tomorrow morning.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Yes, that would be better.

[The Chair, Liberal, Anthony Housefather]

I hope we will finish but with all the votes, we just don't know. So, I will just ask everyone to get their documents and we're going to start our clause-by-clause consideration of Bill C-46, an act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other acts.

From the Department of Justice today, I'd like to welcome Ms. Carole Morency, who is the director general and senior general counsel of the criminal law policy section; Mr. Greg Yost, who is counsel in the criminal law policy section; and Ms. Joanna Wells, who is also counsel in the criminal law policy section. Welcome.

Pursuant to Standing Order 75(1), consideration of the preamble is postponed. We have a proposed amendment to the preamble that we will treat at the end of the clauses.

(Clause 1 agreed to)

(Clause 2 agreed to)

(On clause 3)

We have NDP-1.

Mr. Julian.

[Peter Julian, NDP, New Westminster—Burnaby, BC]

Thank you very much, Mr. Chair. I'm bringing greetings from Alistair MacGregor, who is our critic and is not here, obviously, but is looking on with a lot of interest at the discussion today.

I'll take just a little more time with the first amendment and the third amendment than I might with the others. I wanted to start off by saying that of course the NDP supports the principle of the bill. We believe very strongly that we need to ensure that our highways are safe.

That being said, you'll know, Mr. Chair, that there were concerns raised by some of the witnesses about some of the constitutional aspects. There was a concern that the bill in certain areas might be considered unconstitutional. Having gone through, in the previous Parliament, at least a half a dozen cases where committees approved bills that were subsequently thrown out by the courts, it would seem to me to be very important, though we have a lot of work to do, to work through and make these adjustments to the bill so that we can ensure that this balance is there, that there are no elements that could be considered unconstitutional, and at the same time, making sure we're getting a bill through that will stand the test of any challenges.

We entirely support the principle of the bill. The amendments that we're offering are designed to make sure that the bill is appropriately balanced, and that it withstands any challenges that could happen.

The first amendment that the NDP is offering simply moves to delete a section that speaks to drug recognition evaluation. As you'll recall, Mr. Chair, a number of witnesses, including the Canadian Civil Liberties Association, raised concerns about this provision of the bill, given the fact that there is a fairly high likelihood that individuals who may not be guilty could be falsely accused of being impaired because of the inability of the test to be accurate.

The Canadian Civil Liberties Association said there was a 20% likelihood that individuals who had actually not consumed any drugs would be falsely accused of being impaired, and they went on to say that the non-active metabolites of some drugs stay in a driver's system long after their impairing effects have worn off. These limitations could mean that somebody might receive a positive test when they are in fact innocent, and it's for that reason that I put forward, on behalf of our critic, amendment NDP-1.

[The Chair, Liberal, Anthony Housefather]

Thank you very much. If everybody can be as succinct as that, that is perfect.

Mr. Fraser.

[Colin Fraser, Liberal, West Nova, NS]

I appreciate the intention behind the amendment. I don't agree, though, that it is necessary. There already are reasonable grounds, of course, in order for the person to have gone through the process to where they are actually being evaluated for drugs. The officer must have reasonable grounds to believe that the person is impaired. This does create a reverse onus position, but I think it's reasonable in the circumstances. It's a rebuttal of the presumption that the person can put forward and still argue, and if they raise reasonable doubt, then obviously the person is acquitted. Doing so would place undue difficulty on the crown in many circumstances in order to necessarily prove this element. I believe that it's reasonable, in order to have the presumption rebutted by the defence in order to reverse the onus in this position.

I believe that it is reasonable to do so, and that is why I am opposing this amendment.

[The Chair, Liberal, Anthony Housefather]

Are there any other comments from anyone?

Mr. Julian, do you have any closing comments?

[Peter Julian, NDP, New Westminster—Burnaby, BC]

I would just say, as I did at the outset, that if we push a bill through and there have been concerns raised about its constitutionality, we may end up doing the work twice, in a sense—as we saw in the previous Parliament, with bills being rejected by the courts and then Parliament and the government having to start over and redo that legislation.

I am not sure the public interest is served by putting forward legislation that may not withstand court challenge. Ultimately, it would mean that we would have to start over, particularly in an area like this, where I think we were all agreed on the important objectives of the bill.

[The Chair, Liberal, Anthony Housefather]

We will now move to the vote on NDP-1.

(Amendment negatived [See Minutes of Proceedings])

(Clause 3 agreed to on division)

(Clause 4 agreed to)

(On clause 5)

We have multiple amendments to clause 5.

CPC-1 is in the name of Mr. Cooper.

Mr. Warawa, go ahead.

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

It's an honour to be with you to discuss this important bill.

The amending motions from Mr. Cooper focus on mandatory minimums. I will be speaking on my behalf. I don't want to assume to speak for him, but I think we are on the same page.

On the importance of providing guidelines to the courts, I think we would all agree on the importance of the discretion of the courts in sentencing. The courts are provided a guideline for maximums, and in cases where there is impairment, it would be helpful to provide guidelines to the courts for minimums. The more serious the offence, the more serious the mandatory minimum.

In the next number of amendments, the first one focuses on impairment. It is self-explanatory. It's an indictable offence for impairment, and those are the recommended mandatory minimums.

[The Chair, Liberal, Anthony Housefather]

Right now, we are dealing only with CPC-1, and there are changes to the mandatory minimums for both indictable and summary under CPC-1. I just want to make sure that we are all clear on what we are talking about.

He is extending on indictable, and he is extending for the third and subsequent offences on summary.

[Rob Nicholson, Conservative, Niagara Falls, ON]

It's the first one, where no one is injured or killed.

[The Chair, Liberal, Anthony Housefather]

Are there any comments from any other colleagues?

Mr. McKinnon.

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

I oppose this amendment, because I think the existing minimums are severe enough. We haven't heard any testimony that higher minimums act as a deterrent, and we've actually heard testimony that they don't, so I will be opposing this amendment.

[The Chair, Liberal, Anthony Housefather]

Mr. Fraser.

[Colin Fraser, Liberal, West Nova, NS]

I was going to say the same thing. We haven't heard any evidence that there would be an impact on reducing impaired driving from instituting higher mandatory minimums. What we heard was clear evidence that the fear of getting caught is what actually deters people from impaired driving and has resulted, in many cases, in reductions in other jurisdictions. I don't see the need to change the mandatory minimums as they are now.

I would note as well that aggravating factors on sentencing can result in higher penalties than these mandatory minimums, especially if somebody, for example, were at double the actual limit of impairment. That is taken into account on sentencing.

The current mandatory minimums are adequate, and therefore I oppose this amendment.

[The Chair, Liberal, Anthony Housefather]

Are there other comments?

Mr. Warawa, do you want to add anything at the end?

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

I'll speak on future amendments.

[The Chair, Liberal, Anthony Housefather]

Colleagues, given that there is no further debate on this one, I call a vote on amendment CPC-1.

(Amendment negatived on division [See Minutes of Proceedings])

We will move to amendment CPC-2.

Mr. Warawa.

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

We're now moving to impaired driving causing bodily injury. The mandatory minimums that are being recommended as a guide to the courts are now of higher consequence.

The comments on the previous amendment were on whether a mandatory minimum acts as a deterrent. It can be argued that it does or that it does not. It definitely provides guidance to the courts, and the more serious the offence is, the more the recommendation in the legislation is for more serious sentencing. That's why this is moved.

We have now moved from the offence of impairment to impairment causing bodily harm.

[The Chair, Liberal, Anthony Housefather]

Mr. Nicholson.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Yes, it is very reasonable, if you have a look at this. You want people to continue to have confidence in the criminal justice system, and somebody who is drunk and injures or harms somebody on their first offence gets 120 days. That doesn't seem out of line. For the second offence it's one year, and for each subsequent offence two years.

You have to send a message out to people who commit these kinds of crimes that there are going to be serious consequences, and I think that is captured in this amendment.

[The Chair, Liberal, Anthony Housefather]

Mr. Fraser.

[Colin Fraser, Liberal, West Nova, NS]

I go back to what I was saying a moment ago on the actual intent of this legislation, which as I understand it is to reduce the incidence of impaired driving. Based on the evidence we heard, it was the fear of getting caught rather than penalties that would actually have the deterrent aspect; however, of course, the current mandatory minimums in place are there for a reason and are well understood.

Just to respond to a comment that was made, these provide more than guidance to the courts; these are minimums that the court must enforce. What is guidance to the court is the case law: similar circumstances for similar offenders should attract similar penalties.

The other thing I would say is that with mandatory minimums comes a prohibition on making a conditional sentence order, so that on a first offence a person is required to be put into actual custody rather than have the possibility of serving a sentence in the community on strict conditions. I think this provision therefore makes a too harsh mandatory minimum, in this case, for a first offence, regardless of the tragic circumstances that may occur with regard to somebody's unfortunately suffering bodily harm. I would rather leave it to the discretion of the courts and stick with the same penalties that we have in place now.

[The Chair, Liberal, Anthony Housefather]

Are there other comments, colleagues?

Not hearing any, I'll ask, do you want to close, Mr. Warawa?