Evidence of meeting #28 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 clause.
A recording is available from Parliament.
Liberal
The Chair Liberal James Maloney
I'll allow you to finish, Mr. Baber. This a procedural issue we have to deal with, so please be patient.
Do I have unanimous consent?
Conservative
Roman Baber Conservative York Centre, ON
Mr. Taylor, I believe it's very instructive that the Liberals are telling everybody that they're using the safety valve to strengthen mandatory minimum sentences but are not applying the safety valve to the most serious offences of murder and treason. That, in and of itself, defies logic and exposes the argument for the safety valve doing not what it intends to do but, rather, quite the opposite. It does not strengthen mandatory minimum sentences, because if it did, then the Liberals would apply the safety valve to murder and treason as well. It weakens mandatory minimum penalties.
We're living in a crazy environment. We all knock on doors. We all talk to voters. I come from the city of Toronto, where crime right now is the most important issue for voters. People don't feel safe walking the streets of downtown Toronto. They don't feel safe taking the TTC. They don't feel safe in their local neighbourhoods in North York. We need to take a bite out of crime. We need to strengthen mandatory minimum penalties, not weaken them. What we've been seeing from the judiciary—with respect to the judiciary—is the undermining of mandatory minimum penalties.
Mr. Brock is proposing a reasonable amendment to put some sort of parameters around the safety valve, parameters that exist in other jurisdictions. Will the Liberals please not undermine mandatory minimum penalties and put some sort of framework around this proposed safety valve by passing Mr. Brock's amendment?
Thank you.
Liberal
Patricia Lattanzio Liberal Saint-Léonard—Saint-Michel, QC
Thank you, Mr. Chair.
I thank my colleagues for their interventions. I have a question for the officials.
It seems to be quite clear that the amendment proposed would undermine the constitutionality of the safety valve, which, I may point out, is fully supported by a Conservative member, more specifically the member for Kamloops-Thompson-Nicola, who is in full agreement with the use of the safety valve. I want to know if it is your understanding that it also limits judicial flexibility.
This isn't about going easy on anyone. It's about making sure that the law works for the people it's intended to protect. I would like your thoughts on that.
Counsel, Criminal Law Policy Section, Department of Justice
Thank you for the question.
As currently drafted, clause 63 tracks the constitutional standard, affording judicial discretion to impose a shorter term of imprisonment only where the MMP would constitute cruel and unusual punishment for the offender before the court. The inclusion of additional mandatory criteria could mean that proposed judicial discretion would be unavailable in some cases where the MMP would otherwise constitute cruel and unusual punishment. For example, where an offender has a criminal record, this could raise charter issues.
Additionally, excluding financial hardship could further impact judges' ability to assess whether the impact of a particular MMP would constitute cruel and unusual punishment, because the Supreme Court of Canada has made clear that financial hardship can be relevant to the assessment under section 12 of the charter. Then, additionally, the proposal to limit judicial discretion to impose nothing shorter than half of the MMP could also re-enact existing charter vulnerabilities, because we know of several cases where courts have found that even half of an existing MMP could constitute cruel and unusual punishment.
Senneville is an example of that, because in that case, they said that for the reasonable hypothetical offender, the proportionate sentence would be a conditional discharge. If an individual presented with similar facts to the reasonable hypothetical in Senneville, it could be that even a six-month MMP, which would be half of the existing MMP, could constitute cruel and unusual punishment.
The short answer would be that, yes, it could introduce new charter vulnerabilities.
Liberal
Liberal
Anthony Housefather Liberal Mount Royal, QC
Thank you, Mr. Chair.
With respect, I want to come back to some of the stuff that Mr. Baber said, because, of course, this bill essentially re-establishes MMPs that were struck down by the courts. Of course, this bill furthers the goal of ensuring that MMPs are put in place, because otherwise they would remain struck down.
This bill creates a mechanism by which courts can determine whether or not somebody's individual circumstances, as opposed to using a reasonable hypothetical, would invalidate something for that person instead of for the entire group of offenders. The courts will no longer be using reasonable hypotheticals. They will be looking at the individual charged with the offence and they'll be determining if the MMP is inapplicable to them, and then you have suggested wording that is consistent with that principle, which is whether it would be cruel and unusual.
Mr. Baber is now seeking to introduce other elements into the factoring. Mr. Baber was arguing that not including murder or treason somehow is illogical. To me, it's completely logical, because we're assuming that murder and treason are such heinous offences that nobody would ever question an MMP for them, and they have not been the subject of debate in the courts that could lead to them being—
Liberal
Anthony Housefather Liberal Mount Royal, QC
I don't know what you're doing. I let you speak.
We don't believe there's a hypothesis under which a reasonable hypothetical is going to allow a court to strike down a murder or treason offence, so there was no need to include that here.
Am I correct in the supposition that, because these are such heinous crimes, we feel we can exempt them from the safety valve because they would never be struck down in the first place for anybody? Would that be correct?
Senior General Counsel and Director General, Criminal Law Policy Section, Department of Justice
I can answer the question in a slightly different way, perhaps.
Minister Fraser, I think, before this committee and when he appeared the week before last at the status of women committee, indicated that one of the specific concerns the government was trying to address in relation to this specific escape clause was the unintended impact that the increased use of MMPs has had in outlier cases. That, I think, speaks to what you're saying, Mr. Housefather. What we have seen is a proliferation of charter challenges to MMPs that were enacted for very specific reasons that Parliament had deemed appropriate when passing that legislation, but in so doing, there were instances of outlier cases that were of concern.
This escape clause is seeking to address those outlier cases, as Ms. Burt talked about, and maintain the MMPs for the vast majority of cases, remembering that at the end of the day a fit sentence is a fit sentence, and that can be in excess of the mandatory minimum penalty. In exceptional cases, because cruel and unusual really is meant to be exceptional, it may be less.
Liberal
Anthony Housefather Liberal Mount Royal, QC
I agree completely with what you just said. You phrased it very well, so thank you very much.
Mr. Brock has suggested a list of other factors that we would be looking at in addition to cruel and unusual—and you mentioned two factors—one of which was saying that no sentence could be less than half of the mandatory minimum.
I guess what I'm wondering is, obviously, if the wording proposed by Mr. Brock would lead to far more charter challenges than the wording that is already in the legislation. Would you agree with that hypothesis?
Counsel, Criminal Law Policy Section, Department of Justice
Thank you for the question.
Yes, I think it's likely that this would result in increased charter litigation.
Liberal
Anthony Housefather Liberal Mount Royal, QC
We're not in a situation where it's simply a legislator who is making a decision without the benefit of the court judgments that we've been looking at for years. The charter's been in effect since the 1980s. You opined upon where we could draw the line on the safety valve clause, and I presume advice was given that this is a reasonable area—to confine it to cruel and unusual punishment, or where the minimum mandatory would be cruel and unusual based on the circumstances of that offender.
Is that essentially what your advice was? I guess my question would be this: If we added in the new wording, would you be comfortable, at that point, defending charter challenges with Mr. Brock's additions?
Senior General Counsel and Director General, Criminal Law Policy Section, Department of Justice
I think Ms. Burt has pointed out that the additional criteria, which we would read as being necessary in addition to finding that the potential penalty would amount to cruel and unusual punishment, would not be sufficient. You would have to go beyond that and also show that, for example, the offender had no prior criminal record. I do believe that would invite additional charter litigation.
Liberal
Conservative
Larry Brock Conservative Brantford—Brant South—Six Nations, ON
I am so deeply disappointed to hear this running theme of “this could potentially happen” or “that could potentially happen.” Let's face it: Isn't the entirety of Bill C-16 susceptible to a charter challenge, yes or no?
Senior General Counsel and Director General, Criminal Law Policy Section, Department of Justice
Mr. Brock, as I've said in response to other questions before this committee, it is always possible—
Senior General Counsel and Director General, Criminal Law Policy Section, Department of Justice
—that legislation could be challenged.