Justice Committee on May 8th, 2018

[The Chair, Liberal, Anthony Housefather]

I'm calling this meeting to order.

Committee members, we're just going to have a brief housekeeping issue before we move to the clause-by-clause on Bill C-375. As everybody knows, we had planned to table in the House on Thursday our report on jurors, and we were going to do our press conference at noon, but in deference to the fact that, unfortunately, there is a funeral some of us are going to—in particular Mr. Nicholson—we're going to delay the press conference and the tabling of the report, if everybody agrees, until we return on Tuesday, May 22. We'll deposit it at 10 o'clock in the House, and then we'll do our press conference. Mr. Rankin has a meeting, so he can only get there for 1:15 p.m. We'll do the press conference at 1:15 p.m. on Tuesday, May 22, if everybody is okay with that.

We will proceed with our regular meeting on Thursday, because we have witnesses coming from out of town. For that, we will indeed go ahead. The meeting will proceed as scheduled on Thursday, but not the press conference. Is everybody good with that?

[Some hon. members]

Agreed.

[The Chair, Liberal, Anthony Housefather]

Today is a very exciting day for this committee, because we have two bills we're doing clause-by-clause for, which is probably a rarity. Perhaps we've even set a record. I don't know. Julie, you might want to research that and put out a press release if we have.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Can we have a report on that, please?

[Voices]

Oh, oh!

[Rob Nicholson, Conservative, Niagara Falls, ON]

(On clause 1)

[The Chair, Liberal, Anthony Housefather]

Basically, in Bill C-375, there is only one clause. On clause 1, we have three amendments that were received, two of which are similar, and one is being withdrawn, which is LIB-1.

There are two we know we are hearing. The first is LIB-2.

Mr. McKinnon, the floor is yours.

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

Thank you, Chair.

I'd like to move this amendment to respond to some of the concerns we heard in testimony. Basically, it clarifies the language around mental disorder and so forth, but it also focuses the information on what is relevant for sentencing purposes. I think that is what was needed. I believe everyone has a copy of the amendment, so I won't read it out, but I so move.

[The Chair, Liberal, Anthony Housefather]

All right. Is there a discussion?

I'll clarify that there are three basic changes from the original wording of the bill. The first one replaces the term “mental disorder” with “mental condition”; the second makes sure that it has to be relevant for sentencing purposes in order to be included; and the third changes the language from “mental health care programs” to “mental health services or support available to the offender”. Those are essentially the three changes, based on what you heard in testimony.

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

Yes, that's what I meant to say.

[The Chair, Liberal, Anthony Housefather]

I'm just adding.

Now we'll move on to debate. Does anybody wish to speak to this?

Mr. Rankin, go ahead.

[Murray Rankin, NDP, Victoria, BC]

I think it's great.

[The Chair, Liberal, Anthony Housefather]

Okay. Let me then call the question.

(Amendment agreed to on division [See Minutes of Proceedings])

Now we move to the second amendment, which is NDP-1.

Mr. Rankin, the floor is yours.

[Murray Rankin, NDP, Victoria, BC]

Thank you.

I wasn't here. My colleague Alistair MacGregor was here, but I understand that Dean Embry, from the Canadian Council of Criminal Defence Lawyers, expressed general support but had one concern about privacy in entering the offender's mental health information as an exhibit in court in all circumstances.

My amendment—and I'll come to the wording of it in a minute—proposes that the pertinent information be given to the judge without unnecessarily committing that information to the public record in every circumstance. Ideally, the mental health information would be provided in a section that's reviewed only by the judge in a part of the report and then factored into the sentencing. That would allow us to preserve the privacy rights of the offender, satisfying the concern. At least the attempt was to satisfy the concern that Mr. Embry suggested. I understand he was supportive of the general bill but had that one very specific concern.

I worked with the legislative counsel. The drafting of this amendment is taken from the section of the Privacy Act that talks about disclosure of information relating to physical or mental health. The words that are used in the current statute are “without the consent of the individual to whom [the information] relates”. It talks about “duly qualified medical practitioners”, etc. The language about “the best interests of the offender” comes out of that statute. The objective was to try to parallel a statute that has privacy as its foremost concern and use language that is similar in the Criminal Code amendment.

[The Chair, Liberal, Anthony Housefather]

I understand. That's helpful.

Mr. Fraser, go ahead.

[Colin Fraser, Liberal, West Nova, NS]

Thank you for that, Mr. Rankin. I understand where Mr. MacGregor is coming from in putting this forward, and your intervention is helpful. I agree that the witness did testify to a concern regarding this privacy issue.

The issue I have with this type of clause in the Criminal Code is, first of all, the term “contrary to the best interests of the offender”. You say that this may be something in the Privacy Act, but I don't know if it's known anywhere in the Criminal Code. I worry that it would add an extra element of difficulty for a judge to know exactly what his or her obligation is in determining what the best interests of the offender are. What is the scope of that? Does the judge have to determine whether it would be in their best interests on anything to do with the sentencing, or with other privacy issues, or related to employment? I just worry that it is not a term that's known elsewhere in the Criminal Code, and it could cause considerable confusion for the bench in applying it.

As well, the privacy issue as determined means that, if a sentencing judge is going to be using the information from the report in a sentencing decision, that information is obviously going to be indicated, either orally or in writing, in the decision on the sentencing hearing. Therefore, it would become public in any event.

I get where this is coming from. I understand that there may be a concern there, but I think that this amendment would actually present other problems and unforeseen consequences that we could avoid by not accepting it. That's why I will be voting against the motion.

[The Chair, Liberal, Anthony Housefather]

Mr. Rankin, if you don't mind, because you didn't have the benefit of being here for Mr. Embry's testimony, I would also like to mention that this type of questioning was given to Mr. Embry. I wish I had the transcript in front of me.

Essentially, he said that not including it in the document means that it would still be presented in court, but that would be done verbally. It would be more difficult for somebody to go out and find this information because they would somehow have to get a copy of the court transcript, but it would be theoretically possible. I think he said it would just be more difficult. I wish I had the transcript.

[Murray Rankin, NDP, Victoria, BC]

I actually have it.

[The Chair, Liberal, Anthony Housefather]

Okay, perfect. Go ahead.

[Murray Rankin, NDP, Victoria, BC]

I'll read it, and then maybe I'll try to see if I can meet the concerns that Mr. Fraser raised.

Mr. MacGregor said:

This is just a quick question. I want to exhaust all my avenues with this bill.

You raised concerns, Mr. Embry, about the pre-sentence report's becoming part of the public record. I don't know whether this is yet possible, but if we could find language to make this section of the pre-sentence report a separate and confidential report to the judge for the judge's eyes only, would that satisfy some of your concerns?

Mr. Embry said, “Yes, for sure it would.”

It was a privacy aspect that he was concerned about. If the drafting we got back doesn't meet the concerns, I wonder whether it would be possible to say in proposed subsection 721(3.1), “Information on the matters referred to in paragraph (3)(a.1) shall be filed with the court in a separate document and the court shall examine the document to determine whether the document ought to be disclosed due to the privacy interests of the offender.”

That gives the judge explicit discretion. It's focused solely on the privacy interests of the offender.

I think you're going to tell me once again that this particular language isn't found in the Criminal Code. Having said that, if you think there is a concern, if Mr. Embry speaking on behalf of the defence bar flagged something that you agree with, this would be my attempt to meet that concern more specifically through “whether the document ought to be disclosed due to the privacy interests of the offender.”

[The Chair, Liberal, Anthony Housefather]

I understand, but right now we're just doing things for the purpose of discussion. We're not actually moving amendments or subamendments. We're talking. When we get to that point, it will be somebody else who will move a subamendment, but right now I think it's just for the purpose of discussion

Mr. Fraser, go ahead.

[Colin Fraser, Liberal, West Nova, NS]

I would ask Mr. Rankin to elaborate on the point Mr. Housefather raised about the fact that this wouldn't necessarily prevent somebody from finding out this information. It's obviously going to be made public during the sentencing hearing; it would just make it more difficult.

Don't you think that just making it more difficult for somebody to get information they could otherwise get is not necessarily the same as protecting the privacy interests of those individuals?

[Murray Rankin, NDP, Victoria, BC]

It's not a perfect world. However, just to cite an example, if you're in a small courtroom in Annapolis Royal, Nova Scotia and this comes up, the fact that it could be found in some kind of filing in our digital world, or that it could be available in some other fashion everywhere in the world, gives me greater concern than if it is blurted out in a particular courtroom and no journalist is there to hear it.

It's not perfect, but this bill is a very positive thing, if we are going to look after the privacy interests. The guy will never get a job. He's a schizophrenic, and all of a sudden the world knows that. That's something we ought to guard against. There could be legitimate reasons for not letting the world know. Against a pre-sentence report that says he's a schizophrenic, good luck trying to get a job later.

I understood that to be the reason why we're trying to fix this section.

[Rob Nicholson, Conservative, Niagara Falls, ON]

The other thing is, if you do a mental report on somebody, it may have information in there that is actually irrelevant to this. If it were relevant that the individual had some kind of mental problem, and that would factor into the kind of sentence or into whether this person is convicted, yes, I can understand that. It would be in the best interest of this individual to have that public.

Since this bill requires the pre-sentence mental report, I'd be more concerned that it may have all kinds of material going back to the individual's whole life.

I'd go along with Mr. Rankin on this one. If these things do become public, it could be prejudicial toward the offenders, and it would be irrelevant to whether they are going to be convicted, or what their sentence would be.

[The Chair, Liberal, Anthony Housefather]

Just remember that we just amended the bill to say that it has to be related to, or relevant for sentencing purposes. We took out that general—