Evidence of meeting #75 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 amendment.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

Carole Morency  Director General and Senior General Counsel, Criminal Law Policy Section, Policy Sector, Department of Justice
Matthew Taylor  Acting Senior Counsel, Criminal Law Policy Section, Policy Sector, Department of Justice
Nathalie Levman  Counsel, Criminal Law Policy Section, Policy Sector, Department of Justice

4:35 p.m.

NDP

Alistair MacGregor NDP Cowichan—Malahat—Langford, BC

Yes, it essentially covers the same part that NDP-2 does, and since NDP-2 is worded in exactly the same way as NDP-1, I already know this committee's opinion on that. I think Ms. May has certainly taken it a bit further than what I had originally imagined, but yes, I'm prepared to support what she's intending to do here.

4:35 p.m.

Liberal

The Chair Liberal Anthony Housefather

I'll just note, because they're amending the same lines, in the event PV-1 is adopted, NDP-2 cannot be moved because they're amending the same lines.

Does anyone else wish to speak to this amendment?

(Amendment negatived [See Minutes of Proceedings])

Now we move to NDP-2.

Mr. MacGregor.

4:35 p.m.

NDP

Alistair MacGregor NDP Cowichan—Malahat—Langford, BC

I don't really have much to say, Mr. Chair. I think it was all said in a previous round for NDP-1, so I'm prepared to go to a vote.

4:35 p.m.

Liberal

The Chair Liberal Anthony Housefather

Thank you very much. Does anybody else wish to speak?

Mr. Nicholson.

4:35 p.m.

Conservative

Rob Nicholson Conservative Niagara Falls, ON

It's similar to the amendment, the rationale and the wording that you had earlier today with respect to consent. Fair enough. It's the same thing. Thank you.

(Amendment negatived [See Minutes of Proceedings])

(Clause 19 as amended agreed to)

(On clause 20)

4:35 p.m.

Liberal

The Chair Liberal Anthony Housefather

Next we have LIB-5.

Mr. Fraser.

4:40 p.m.

Liberal

Colin Fraser Liberal West Nova, NS

Thank you again.

Similar to both LIB-1 and LIB-4, the language added here on page 9 would make the language consistent on the topic of mistaken belief in consent. I would suggest that, since we've already made those amendments, this one would naturally follow.

4:40 p.m.

Liberal

The Chair Liberal Anthony Housefather

You're adding the reference to proposed subparagraph 273.2(a)(iii), which was missing from the law.

4:40 p.m.

Liberal

Colin Fraser Liberal West Nova, NS

That's right.

4:40 p.m.

Liberal

The Chair Liberal Anthony Housefather

PV-2 would not be able to be moved in the event LIB-5 is adopted because PV-2 amends the same line.

Is there any discussion on LIB-5 beyond what Mr. Fraser mentioned?

Mr. MacGregor.

4:40 p.m.

NDP

Alistair MacGregor NDP Cowichan—Malahat—Langford, BC

Since Mr. Fraser is seeking to amend a section, the exact same section that Ms. May is also seeking to amend, Mr. Fraser, do you have any comment on what Ms. May is attempting to do with PV-2?

4:40 p.m.

Liberal

Colin Fraser Liberal West Nova, NS

I believe the contemporaneous section, the changes that we made in LIB-1 and LIB-4 dealing with contemporaneous, the necessity of it being at the same time as the sexual activity, addresses this issue where she's talking about consent being vitiated, including those referred to in subsection.... She's talking about the consent being vitiated, or there being no consent, and I think we've already addressed that in LIB-1 and LIB-4, in my view, so I don't see the need for it now that we've made those changes.

(Amendment agreed to)

4:40 p.m.

Liberal

The Chair Liberal Anthony Housefather

PV-2 at this point is not moveable, so we will move to PV-3.

On amendment PV-3, Ms. May not being here to speak for herself, does anybody wish to speak to it?

This is taking out the words “there is no evidence that” and then making a negative, “to not affirmatively”, as opposed to “was affirmatively”. That's her change. Since she is not here, I can't explain why but that is the change.

(Amendment negatived)

Mr. Cooper on amendment CPC-4.

4:40 p.m.

Conservative

Michael Cooper Conservative St. Albert—Edmonton, AB

Mr. Chair, this is in line with amendment CPC-1, which was to remove “actively” from the section so the arguments are the same.

(Amendment negatived)

(Clause 20 as amended agreed to)

(Clauses 21 and 22 agreed to)

(On Clause 23)

4:40 p.m.

Liberal

The Chair Liberal Anthony Housefather

On clause 23, we have amendment LIB-6, Mr. Fraser.

4:45 p.m.

Liberal

Colin Fraser Liberal West Nova, NS

I won't be putting forward that amendment.

(Clause 23 agreed to)

(Clause 24 agreed to)

(On clause 25)

4:45 p.m.

Liberal

The Chair Liberal Anthony Housefather

On clause 25, we have the identical amendments CPC-5 and LIB-7.

Mr. Cooper.

4:45 p.m.

Conservative

Michael Cooper Conservative St. Albert—Edmonton, AB

I have significant concerns about the changes to the Criminal Code with respect to the application process for defendants who have records related to the complainant. I think there are real distinctions between that scenario and records that are in the hands of third parties, which is why I voted against the previous clause, but at the very least, I believe there is absolutely no reason why one would have to go through the application process in the case of a witness, so it would simply remove “witness” and relate specifically to the complainant.

4:45 p.m.

Liberal

The Chair Liberal Anthony Housefather

Thank you.

Mr. Fraser, you proposed an identical amendment, so would you like to speak to it too?

4:45 p.m.

Liberal

Colin Fraser Liberal West Nova, NS

Exactly. I agree with Mr. Cooper, and I think the evidence we heard was pretty emphatic that having a witness in addition to the complainant would be very problematic, and I don't think it likely that was the intention of the bill. I agree, and that's why I put forward amendment LIB-7. They say the same thing. I support the idea.

(Amendment agreed to)

4:45 p.m.

Liberal

The Chair Liberal Anthony Housefather

On amendment NDP-3, go ahead, please, Mr. MacGregor.

November 8th, 2017 / 4:45 p.m.

NDP

Alistair MacGregor NDP Cowichan—Malahat—Langford, BC

Thank you, Chair.

My amendment seeks to insert after line 15 on page 12 a new paragraph. I know we're getting into lots of decimals here, but this would create a new paragraph 278.92(3)(g.1) with the simple wording, “the complainant's expectation of privacy”.

My rationale behind moving this amendment is that the committee heard that there is a need to clarify the admissibility of a complainant's private records at trial when in the hands of the accused. Specifically, I believe we had Professor Emma Cunliffe of the Peter A. Allard School of Law at UBC, and she stated the following:

I agree with the Criminal Lawyers' Association that there is space for clarification. If we return to the case that's the genesis for this change, the case of Shearing, the facts in that case were that the complainant's diary had been stolen by the accused person, and the court held that the means by which the accused person came into possession of it were not relevant to the admissibility of the diary at trial. That's being addressed by a provision such as this.

She goes on to say:

If we think about the possibility, as exists in some case law, of an accused person improperly obtaining access, for example, to someone's Facebook profiles or confidential email records, there's a significant public policy interest in ensuring that there are procedural safeguards before those kinds of materials can be aired in court.

I think she was agreeing with what the Criminal Lawyers' Association said in its submission, that the link between the complainant's privacy interests and the recording question is not apparent on the face of it. My intention is to add a little bit more specificity with regard to a complainant's expectation of privacy for this section.

4:50 p.m.

Liberal

The Chair Liberal Anthony Housefather

Thank you.

Mr. Nicholson.

4:50 p.m.

Conservative

Rob Nicholson Conservative Niagara Falls, ON

I suppose it might complicate things somewhat in that everyone's expectation of privacy is very subjective. When I saw this and put it into context, it seemed to me that with regard to the right of privacy, everything is covered in the previous section, that says the judge shall consider:

(g) the potential prejudice to the complainant’s personal dignity and right of privacy;

It seems to me that it would be a function of the judge to make that decision here and to take into consideration all of those things. I don't see the necessity for this.

4:50 p.m.

Liberal

The Chair Liberal Anthony Housefather

Thank you.

Mr. Fraser.