Thank you.
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.
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.
Conservative
Roman Baber Conservative York Centre, ON
Yes. Mr. Taylor just contradicted himself.
In your previous answer to my colleague Mr. Mantle, you said that, yes, the process would be that you first might challenge the constitutionality of the entire MMP, in which case the court would be able to look at a reasonable hypothetical before it got to the sentence for the individual accused. Is that correct?
They might choose an off-ramp that's available to them in proposed section 718.4, but they may not Mr. Taylor. Is that correct?
Senior General Counsel and Director General, Criminal Law Policy Section, Department of Justice
The constitutional challenge would be open to an accused to launch, as I've said.
Conservative
Roman Baber Conservative York Centre, ON
That may involve the consideration of a reasonable hypothetical.
Senior General Counsel and Director General, Criminal Law Policy Section, Department of Justice
In consideration of that reasonable hypothetical, were this bill to pass, the courts would be required to consider the operation of section 718.4 with respect to that offender in the reasonable hypothetical's circumstances. Vis-à-vis that reasonably foreseeable offender, this sentencing tool would be available to the court, so in respect of that reasonably hypothetical offender, there would never be a result where the court could not impose less than the MMP if, in respect of that case, it would constitute cruel and unusual punishment.
Conservative
Roman Baber Conservative York Centre, ON
The language says, “When imposing a sentence for an offence”. What we've arrived at here is that we have decided to focus on the individual offender, which is why, to begin with, we had this bad drafting that we sought to amend by clarifying the whole thing.
Mr. Taylor, I take exception to your suggestion. Yes, the court may avail itself of the off-ramp, but the court is not required to go that route. It would still be open to the court to say this mandatory minimum penalty should be struck down entirely without getting to the individual offender. You are not imposing a safety valve on a reasonable hypothetical; you are imposing a safety valve on the accused before you.
Mr. Taylor, I don't know if you're allowed to recommend or provide legal advice, but we now have an amendment before the committee. For greater certainty, if the intent of this bill was to prevent judges from looking at reasonable hypotheticals in consideration of whether an MMP was constitutional or not, would it not be prudent for us to instruct the court not to look at reasonable hypotheticals when considering the constitutionality of a specific MMP? That's an issue at the outset when there is a charter launch on the MMP regardless of the accused.
Would that not be prudent for us?
Senior General Counsel and Director General, Criminal Law Policy Section, Department of Justice
I don't have the exact wording of the motion in front of me, but I think I have a general sense of it.
My understanding of the subamendment and the motion more generally is that, in effect, it is not, as I understand it, a protection against constitutional challenges, because it is an amendment to proposed section 718.4 itself and proposed subsection 718.4(1). Proposed subsection 718.4(1) is a sentencing provision that would allow a judge, in respect of a specific offender, to depart from the imposition of an MMP if it would be cruel and unusual with respect to that offender. My understanding is that proposed subsection 718.4(1.1) would not preclude the ability of an individual accused to launch a constitutional challenge to an MMP under section 12.
My understanding of amendment CPC-23 is that it is very much constrained to the architecture that is proposed in Bill C-16 around the safety valve and the ability to depart from the MMP in a particular case.
Conservative
Roman Baber Conservative York Centre, ON
Mr. Taylor, proposed subsection 718.4(1.1) does not in any way, in my view, respectfully, abridge the intent of proposed subsection 718.4(1). It's a clarification, which is why it follows. We're not changing the safety valve. We're not changing how the court would approach an individual accused. We're adding a clarification on top to say that we will stay with the individual accused and still provide them the offer, still avail ourselves of the safety valve, but that we will not consider reasonable....
You can challenge the constitutionality of an MMP on a bunch of grounds. Our amendment CPC-23 talks only about this specific ground, which is to say you cannot challenge the MMP as a whole using a reasonable hypothetical. That's what it says. Why not take the extra step to be prudent and cautious so that we're not back here in three to five years, looking at another Senneville decision?
Liberal
The Chair Liberal James Maloney
I'm going to suspend for a couple of minutes.
We have a speaking list going.
I'll suspend for five minutes.
Liberal
The Chair Liberal James Maloney
I'd like to call the meeting back to order.
When we left off, we were just about to hear from Mr. Brock.
Conservative
Liberal
The Chair Liberal James Maloney
Okay. Hold on. I have Mr. Saini, Mr. Lawton and then I have....
Do you know what? We'll go to you first, and then to Mr. Mantle and Mr. Gill.
Did you have your hand up?
Conservative
Larry Brock Conservative Brantford—Brant South—Six Nations, ON
Mr. Chair, thank you for recognizing me.
I'll hearken back to some earlier comments I made and comments I've made in relation to other bills.
The whole purpose of parliamentary standing committees is to examine either policy or legislation from government, to hear from witnesses, to cross-examine those witnesses and then, ultimately, to get to clause-by-clause consideration, where reasonable, intelligent amendments are put forth by all parties represented here at committee. The whole purpose behind that, obviously, is....
Bill C-16 is a classic example of the importance of committees studying legislation and leaving aside all the talking points, the positioning and the jockeying of positions during second reading and, potentially, third reading. You get into real and substantive work at committee.
I'm sure all of us at this table have been to numerous riding events. We usually have to correct this every single time it comes up: “What is it you actually do as a member of Parliament? All I see are people on television slapping their hands on their desks and screaming at each other. You look like a bunch of grade school children.” For a lot of Canadians, that's their view of parliamentarians. It's what they see on television every day from two o'clock to roughly 3:15.
I take every opportunity to correct that falsehood. I say that it's called question period. The opposition will ask pointed, direct questions of the Prime Minister, his ministers, his parliamentary secretaries and his backbench. Absolutely not once do you get a responsive answer to a question. Instead, it becomes a theatrical performance by the government, trumpeting its old, tired talking points about being a new government, notwithstanding that it has this manufactured majority because of floor crossers, one of which is currently in our justice committee as I speak.
Conservative
Larry Brock Conservative Brantford—Brant South—Six Nations, ON
No.
It says that notwithstanding the majority, it wants to be collaborative and wants to work together.
What have we seen in the last two weeks? We've seen four examples of opposition MPs trying to open up the tightly guarded window and curtains called transparency and accountability, and this new Liberal government filled with old, tired MPs shut it down. It shut it down because it doesn't want to answer to Canadians. It does not and never has. Since I have been a proud member of His Majesty's loyal opposition, I have never seen this tired, old Liberal government ever agree to shine light or co-operate on issues pertaining to corruption, government spending—
Liberal
Marilyn Gladu Liberal Sarnia—Lambton—Bkejwanong, ON
I have a point of order.
Chair, I'm really not sure what making personal attacks and pontificating on motives has to do with the amendment on which we are speaking right now, so I would ask you to call the member back to relevancy.
Thank you.
