Evidence of meeting #27 for Justice and Human Rights in the 45th Parliament, 1st session. (The original version is on Parliament’s site, as are the minutes.) The winning word was ruling.
A recording is available from Parliament.
Liberal
The Chair Liberal James Maloney
The point is you're characterizing something based on something you said, which is completely out of line. I agree with Ms. Dhillon.
Ask your questions to the witnesses. Let's move on.
Conservative
Roman Baber Conservative York Centre, ON
Okay.
Stare decisis means we have to abide by the court above in the previous decision. Here, we would be bound by Senneville.
If we have an arrest next week and a trial on a similar charge, the court would not say that it's bound. If I understand you correctly, the court would not say that it's bound, because of stare decisis. It would say it's instructive for us to avail ourselves of this new reality that Bill C-16 creates.
We might disagree.
I understand the intent of the safety valve. The intent of the safety valve is to say that you no longer need to worry about being subjected to the MMP, because you have a side door. You can escape the MMP using the safety valve. I get it. That in and of itself does not restore the court to being compelled by the section that was previously struck down.
Is that correct, Mr. Taylor?
Senior General Counsel and Director General, Criminal Law Policy Section, Department of Justice
I'll try it a different way.
To pick up on the examples you just gave, our view is that next week, if a court was seized of a child sexual abuse, exploitation or possession offence, then as you said, Mr. Baber, the MMP would not apply in that case, because the Supreme Court has found it unconstitutional. It is of no force and effect. It remains in the Criminal Code, though. It is on the statute book.
When and if Bill C-16 were to receive royal assent and come into force, the law would change in respect of the way mandatory minimum penalties could be interpreted and applied by the courts.
Ms. Burt talked about the for greater certainty clause. Because the law is different at that point, courts would not be bound by the previous decisions that bound them with respect to MMPs. They would be required to impose the MMPs that were previously unavailable to them because of previous court decisions.
Fundamentally, the escape clause is about sentencing at this point. If the offender was of the view that the mandatory jail sentence was grossly disproportionate—not from a constitutional perspective, but from the escape clause perspective and its application—they would make those submissions at the sentencing stage. It would then be for the prosecutor to make their own submissions and ultimately for the court to decide whether or not that MMP would apply or would not apply.
One final point I might offer is that, as you rightly pointed out, in many of these cases the MMP is not really at issue for the purposes of sentencing for the specific offender. As you pointed out, in the Senneville decision the sentence imposed was in excess of the mandatory minimum penalty. For many of the other MMPs that have been found unconstitutional, as I think you know, they have been found unconstitutional not because of the specific offender before the courts but because of the reasonable hypothetical situations.
Conservative
Roman Baber Conservative York Centre, ON
Mr. Taylor, Naud in fact received nine months for possession and access, so that was below the mandatory minimum.
The reason I'm concerned is that the safety valve instructs the court to look at the individual circumstances before the court, whereas the stare decisis striking of the MMP has nothing to do with the individual circumstances but has to do with the entire statute as it is on the books.
I appreciate your optimism, but I think it will take many years of litigation to determine this question.
Liberal
Liberal
Conservative
Roman Baber Conservative York Centre, ON
I'm sorry, but I'm asking questions about the safety valve, which is the key piece of this legislation.
Not only do you have a lot of latitude on relevance, but I'm talking about the safety valve. I'm having a discussion with the official on the safety valve. I don't understand what the problem is.
Conservative
Roman Baber Conservative York Centre, ON
Yes.
Mr. Taylor, could you perhaps guide us?
We're discussing the safety valve here. Let's say I came to you and said that I wanted to do better. I want to make sure that we don't litigate the question that I'm asking right now for the next 10 years or maybe more.
What would you recommend?
Senior General Counsel and Director General, Criminal Law Policy Section, Department of Justice
Mr. Baber, is the question whether, if Bill C-16 were to be enacted, there would be debate as to whether the MMPs that were previously found unconstitutional were, in fact, revived?
Is that the concern?
Counsel, Criminal Law Policy Section, Department of Justice
I can try to answer that.
This may be repeating a bit of what Mr. Taylor has already said. The Supreme Court of Canada has made clear that, where a court issues a declaration that a law is inconsistent with the charter, the law becomes inoperative in the jurisdiction to which the court's order applies. Of course, when it's the Supreme Court of Canada, that means that the MMP becomes inoperative across Canada, unless or until it is amended or repealed by legislation. The declaration of invalidity operates in accordance with the normal rules of stare decisis.
The enactment of a general structural judicial discretion clause is a fundamental legal change that affects the application of the previous judgments declaring mandatory minimums unconstitutional. Because MMPs could no longer apply in circumstances that would violate the charter by virtue of this new clause, the basis for the previous findings of unconstitutionality have been removed.
In other words, the decisions that made the MMP inoperative, decisions like Senneville, would no longer apply. That's how we would see this playing out.
Conservative
Roman Baber Conservative York Centre, ON
We have a real opportunity here with my amendment. This is an amendment that the Attorney General himself said he had considered. Effectively, what the Liberal government would be telling all Canadians is the following. If we do not safeguard the mandatory minimum penalty for access and possession of child pornography—a one-year sentence—it might never happen again.
I plead with this committee to take a serious bite out of this industry by making sure the main principle of sentencing is a deterrent, and that is jail time.
Thank you.
Liberal
The Chair Liberal James Maloney
Thank you, Mr. Baber.
I was going to suspend at some point.
Would anybody object if we did it right now?
Liberal
The Chair Liberal James Maloney
I didn't think so. I just wanted to make sure.
We'll suspend for a few minutes.
Liberal
Patricia Lattanzio Liberal Saint-Léonard—Saint-Michel, QC
Thank you, Mr. Chair.
I just want to be clear: Offences involving child sexual abuse material are amongst the most serious in the Criminal Code, and those who commit them must face serious consequences. That is why we've addressed this responsibly in Bill C-16.
CPC-13 is not responsible, and let me explain why. The amendment would invoke the notwithstanding clause to bring back mandatory minimum penalties that have already been struck down by the Supreme Court, and this would remove the judicial discretion mechanism proposed in this bill. That is not the right approach. Bill C-16 takes a more durable path by restoring mandatory minimum penalties in a way that is consistent with the charter and aligns with Supreme Court guidance.
The notwithstanding clause does not fix the problem. As you know, there's a term of five years, and it would only delay it. That's all it would do. It is temporary, and it would leave some of the same constitutional vulnerabilities in place.
We should also not create a patchwork by addressing only some offences while others remain subject to different rules. This bill gives us the opportunity to get this right, to protect victims and ensure accountability in a way that will stand up in court.
Yes, Mr. Baber, Bill C-16 does have mandatory minimums.
For those reasons, I will be opposing your amendment.
Conservative
Andrew Lawton Conservative Elgin—St. Thomas—London South, ON
I am very pleased to be supporting Mr. Baber's amendment, which not only would reinstate mandatory minimum sentences for heinous offences, including the distribution and possession of child sexual abuse and exploitation material, but would do it in a way that would protect it from being overturned, as it was, so absurdly, by the Supreme Court in the Senneville decision.
Contrary to how members of the Liberal government have tried to frame the notwithstanding clause on criminal justice issues in the past, the notwithstanding clause is a part of the Charter of Rights and Freedoms. Using the notwithstanding clause is, by design, a charter-compliant mechanism, because it is using a tool provided to legislatures, including the federal Parliament, to preserve something that Canadians want and deserve and that victims want. They are, not just in these offences but in a broader set of offences, very strong signals from the government—from Parliament, which is accountable to the people—that there should be, just as we have maximum sentences in law, minimum sentences when something is so heinous.
We need to have a safeguard against an overly lenient sentence. The Senneville decision, by the way, triggered a robust discussion at this committee: My Conservative colleagues and I moved an amendment to denounce, in the strongest possible terms, the idea that even some paltry one-year sentence for these offences could ever be seen as cruel and unusual punishment. The catalyst for the Senneville decision was a pair of cases in which the trial judge went below mandatory minimum sentences, proving that judicial leniency is a problem.
This has come up in the past before. This is not an issue that started with the Senneville decision. I'm actually very glad that even Liberal members of Parliament have recognized this. This is from the debate on Bill C-75 a couple of years back. This is a quote:
I do not think Canadians look at the decisions that judges have made and think that criminals are getting an adequate punishment for the crime. While not every single crime is identical, and I am not opposed to judges having some leeway, it looks to me that the leeway is so big that, in many cases, we are coming to the minimum sentence instead of something that is more standard.
Now, that was from Liberal member of Parliament Marilyn Gladu. I think she was actually very accurate in denouncing how judicial leeway is sometimes resulting in subpar decisions.
We also had a comment, again from Liberal MP Marilyn Gladu, back in November. The Liberal failure of this was put on full display:
Then they had Bill C-5, which took away mandatory minimums and put house arrest in place. That made things even worse.
We have recognition, from MPs of multiple parties, that the Liberals have failed to send serious signals and messages through their criminal justice reforms over the past several years. I think, on something like this, we should be able to band together, representatives from all parties, and say that there is no tolerance for the type of leniency that would argue that a sentence of even just one year—which I think even then is too low—is cruel and unusual punishment for someone trafficking in child sexual abuse and exploitation material.
This is a mechanism that Mr. Baber has proposed in his amendment. I think it is a very strong one. It is a very important one. It is in line with what Canadians would expect, which is to not have people who have committed heinous and unthinkable acts sent off with 90-day sentences and nine-month conditional sentences, something that just flies in the face of what truly standing up for victims would look like in the justice system.
Liberal
Anthony Housefather Liberal Mount Royal, QC
Thank you, Mr. Chair.
I'm speaking because I almost find it sad that so cavalierly, in the middle of an amendment to a bill, we're throwing in the use of the notwithstanding clause.
This is a clause, I will remind everyone, that has not ever been used by the Parliament of Canada in the 44 years since the Canadian Charter of Rights and Freedoms came into effect.
The Canadian charter is different, Mr. Chair, from other charters. The Canadian charter has section 1. For those listening, it subjects rights to “reasonable limits”. Some rights under the Canadian charter are not impacted by the notwithstanding clause. The notwithstanding clause cannot be used for certain rights in the Canadian charter, and we have not had a catastrophe in 44 years as a result.
There are other rights that are subject to the notwithstanding clause, but they're also subject to reasonable limits that the Parliament of Canada may impose on those rights. It's not like the United States, where if a right is infringed under the Bill of Rights, the court strikes it down.
You have here section 1, which protects those rights. What we would be saying is that we believe a right will be infringed, and we believe we're not doing this in a reasonable way, so we're going to invoke the nuclear option. A responsible legislator will look at a court decision and will determine, as Bill C-16 does, how you can get around the Senneville decision. What do you do to ensure that minimum mandatory penalties are not struck down based on reasonable hypotheticals? This bill formulates a way to avoid the use of the notwithstanding clause.
Mr. Baber referred to a former prime minister, Jean Chrétien. Jean Chrétien was Prime Minister of Canada for almost 10 years. He never proposed to the Parliament of Canada to invoke the notwithstanding clause. Let me refer to another former prime minister, Brian Mulroney. Brian Mulroney said that the charter was not worth the paper it was written on because of the notwithstanding clause. He firmly opposed, throughout the years that he was leader of the Conservative Party and thereafter, ever using the notwithstanding clause, because he understood that you don't override fundamental rights in an unreasonable way.
However, time after time since I've been back on the justice committee.... I don't remember—Ms. Khalid will remember, as we sat on the justice committee for four years—any Conservative member at the justice committee between 2015 and 2019 proposing that we should invoke the notwithstanding clause, at any time. Since I've been here on this committee in the last several months, I've heard over and over again a demand that we use the notwithstanding clause on literally everything—
Conservative
Liberal
Anthony Housefather Liberal Mount Royal, QC
I heard that you've brought forward....
I'm sorry. I shouldn't be responding, Mr. Chair.
The Conservatives brought forward a motion to say that we should invoke the notwithstanding clause on Senneville. The notwithstanding clause is not necessary in this case. The government is proposing and this committee is evaluating a different type of solution, because we all agree that we are disturbed by and find unacceptable the decision in Senneville where a minimum mandatory penalty was struck down based on a reasonable hypothetical that didn't tie whatsoever to the people who were the subject of the case. Now that won't be the case anymore.
Again, I wish that all of us would understand the very real impact. If you agree with the notwithstanding clause in one instance, then you cannot argue against it in other instances where it may be used to marginalize you. Having seen how the notwithstanding clause has been used pre-emptively and arbitrarily, I certainly do not support the Parliament of Canada using the notwithstanding clause at all. I certainly don't think that the appropriate way to do it is to just throw it into an amendment to a bill like this.
For me, this is a fundamental thing. I think rights are sacrosanct. I think “reasonable limits” under section 1 are sufficient. I certainly don't agree with using the notwithstanding clause, and certainly not in this way.
Thank you, Mr. Chair.
