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
Are there any comments on the subamendment before we vote?
Mr. Baber.
Conservative
Roman Baber Conservative York Centre, ON
I'd like to speak to my friend, Mr. Mantle's, subamendment.
The subamendment basically states the reason for the bill. The whole reason for the bill is to not consider reasonable hypotheticals, to deviate from this practice where courts do not look at the facts before them but consider a hypothetical scenario, and on the basis of that hypothetical scenario, strike down the mandatory minimum penalty as unconstitutional.
We've had some exchanges with the officials, who believe that the safety valve will now potentially end this practice, but I'm not sure that the practice will end. There's absolutely no reason for us not to be certain. I'd like to question the officials on this.
If we can please look at page 71 of the bill, proposed subsection 718.4(1), the new section, says the following:
When imposing a sentence for an offence that has a minimum punishment of a specified term of imprisonment, a court shall impose a shorter term of imprisonment than the specified term if, in the circumstances, the minimum punishment would amount to cruel and unusual punishment for that offender.
In other words, Ms. Burt or Mr. Taylor, what I understand the bill to do is basically say that when looking at that individual offender, a court may consider a lower sentence than the MMP if the court deems it to be cruel and unusual for that offender. Am I correct?
Senior General Counsel and Director General, Criminal Law Policy Section, Department of Justice
You are correct. This is a sentencing provision, and your understanding of how it operates is correct.
Conservative
Roman Baber Conservative York Centre, ON
Thank you.
However, nothing in the section precludes the court from looking into the constitutionality of the MMP. In other words, before you get to the sentencing stage, nothing prevents the mounting of an argument that the mandatory minimum penalty is in and of itself unconstitutional because it's cruel and unusual. Is that correct?
Senior General Counsel and Director General, Criminal Law Policy Section, Department of Justice
That's correct.
There would be a separate process for a constitutional challenge. If I may just quickly—
Conservative
Roman Baber Conservative York Centre, ON
If I may, Mr. Taylor, this is the most important moment of everything that's happened on this bill. The bill was brought in order to eliminate the practice of reasonable hypotheticals. We just heard from Mr. Taylor that even though you're supposed to avail yourself of the safety valve as it pertains to the individual offender, nothing precludes the court from looking at the constitutionality of an MMP. You can still come back and say this MMP is cruel and unusual on the basis of this reasonable hypothetical. Therefore, the entire clause would be struck down, therefore defeating the entire purpose of this bill. This amendment is very clear-cut. It says a court shall not consider a reasonable hypothetical. That's why we're here.
Why not pass this basic, very clean language?
This is tantamount to performing surgery on a patient and removing the cancer, but not stitching up the patient after surgery. If the Liberals are really serious about preserving mandatory minimum penalties while avoiding cruel and unusual scenarios for individual offenders, they got it done, but they have neglected to impose a mechanism where reasonable hypotheticals would still not be considered. This amendment does that.
Let's think about this a little more. I'm glad that now everybody understands the legal landscape that I've been talking about for days. Let's actually accomplish what Bill C-16 sets out to accomplish.
Thank you.
Conservative
Larry Brock Conservative Brantford—Brant South—Six Nations, ON
We should all strive for a certain standard as parliamentarians, and that standard is statutory clarity.
I couldn't agree more with Mr. Baber. The whole spirit of this section of Bill C-16 is to avoid the rampant misuse of reasonable hypotheticals as a means to strike down mandatory minimum penalties. I believe that justice officials confirmed this throughout the two days of clause-by-clause consideration and maybe simply addressed this recently with Mr. Baber.
There is nothing in Bill C-16 specifically precluding judges from looking at reasonable hypotheticals. There's no language, no direction. Is that correct? Is my interpretation of this bill correct?
Senior General Counsel and Director General, Criminal Law Policy Section, Department of Justice
Thank you for the question, Mr. Brock.
Just to be really crystal clear, the bill's proposed changes in this clause are sentencing amendments that relate to a sentencing outcome for a specific offender. They require the court to look at the particular circumstances of that offender and whether the mandatory minimum penalty that would apply in those cases would be cruel and unusual with respect to that offender. Mr. Baber talked about that.
A constitutional challenge to a mandatory minimum penalty would be launched separately from this provision, which, as I said, is a sentencing provision, and would follow the same approach that exists in jurisprudence today. The court would look at the particular circumstances of the specific offender before the court, and then they would go on to the reasonable hypothetical analysis.
In one of my comments last week, what I emphasized, though, is that what we expect would happen in those circumstances is that when analyzing the particular circumstances of a reasonablely foreseeable case, a reasonable hypothetical, the court would have resort to the fact that, in that reasonably foreseeable case, a court would be able to depart from the MMP if, in the circumstances of that offender, it would amount to cruel and unusual.
Although they can, as we understand it, undertake, in a constitutional analysis, an analysis of a reasonable hypothetical case, the outcome would still be the same, because the court would still, as part of its consideration, be able to avail itself of the escape clause.
Conservative
Larry Brock Conservative Brantford—Brant South—Six Nations, ON
Thank you for that.
I don't think it completely answers my question or my concerns, and these are concerns that every member of this committee should have.
I wholeheartedly feel that without direction within the statute itself, within the bill itself, to look at factors to consider when you're going to deviate and without specific language that does not look at or consider reasonable hypotheticals, in my view, we're going to be increasing the level of litigation, because I can't foresee any defence counsel worthy of his or her practice not taking a further constitutional challenge of all those offences that have been resurrected by Bill C-16 that had been previously ruled to be contrary to section 12. Why wouldn't a competent defence lawyer bring yet another constitutional challenge?
All I've been hearing all day long today and part of last Wednesday is that this is to avoid the whole use of increased litigation. It's all the more reason for my Liberal colleagues to look at the utility and the significance of Mr. Baber's amendment, so we can take a look at closing a loophole that currently exists in Bill C-16 that has the potential of opening up litigation floodgates. That's all I'm asking for consideration of from my colleagues opposite.
Conservative
Jacob Mantle Conservative York—Durham, ON
I just want to clarify my understanding with officials here. Forgive me for coming to this a little bit new.
If I understand my colleague's argument, the purpose of Bill C-16, in part, was to address the issue of reasonable hypotheticals, which led to what members of Parliament have considered to be results incongruous with our view of the severity of the crime and the sentence that should have been imposed. Part of the goal of this is to remove the potential use of reasonable hypotheticals to get to those incongruous results.
If I'm understanding the operative provision of Bill C-16, it doesn't close that ability because a litigant could still raise the constitutionality of the underlying minimum penalty. Is that correct?
Senior General Counsel and Director General, Criminal Law Policy Section, Department of Justice
Conceptually, it is correct. An individual could launch a charter challenge to an MMP as being contrary to section 12 and constituting cruel and unusual punishment.
Conservative
Jacob Mantle Conservative York—Durham, ON
In the normal process, would those arguments take place before they would even get to the sentencing provision? Would they dispose of that argument first before getting to this one?
Senior General Counsel and Director General, Criminal Law Policy Section, Department of Justice
Yes, I think they would.
Conservative
Jacob Mantle Conservative York—Durham, ON
If a litigant was successful in those arguments, would this operative provision of Bill C-16 be moot?
Senior General Counsel and Director General, Criminal Law Policy Section, Department of Justice
It's a good question and I thank you for it.
I think the analysis there would follow along the lines of what I answered to Mr. Brock. In considering the constitutional arguments in respect of a mandatory minimum penalty, the court would follow the two-step process.
In the first instance, it would consider the specific impacts on the individual before the court—that particular accused or offender—and whether it would constitute cruel and unusual punishment vis-à-vis them. They would be able to avail themselves of the fact that this clause exists, if Bill C-16 were to pass, to come to the conclusion that but for this clause, the result vis-à-vis the specific offender before the court would constitute cruel and unusual punishment. Because of the clause, were it enacted, the court need not come to that conclusion because it would have the ability to depart in relation to the specific offender.
If, in respect of the specific offender, the MMP wasn't cruel and unusual, they wouldn't have to consider proposed section 718.4 because it wouldn't amount to cruel and unusual punishment in those specific cases. They would still be required to move to the second stage of the constitutional analysis, which is a reasonable hypothetical and whether it would be grossly disproportionate for a reasonable case that is not far-fetched, as the court has said.
In those circumstances, as I said to Mr. Brock, our understanding would be that, again, the court would be able to take into account that even in respect of that reasonably foreseeable situation, the court would be able to invoke proposed section 718.4 for that reasonably foreseeable offender and allow it to impose a sentence of less than the mandatory minimum penalty of imprisonment.
Whether it's cruel and unusual with respect to the specific offender or whether it's cruel and unusual with respect to the hypothetical offender, proposed section 718.4 would provide an alternative approach for the courts to impose less than the MMP.
Conservative
Jacob Mantle Conservative York—Durham, ON
Thank you for outlining that two-step process. I didn't practice criminal law so I'm not as familiar with the procedure.
That's one option that a court could take. Could the court not also just strike the entire provision before you get to that?
Senior General Counsel and Director General, Criminal Law Policy Section, Department of Justice
Do you mean the MMP itself, or proposed section 718.4?
Senior General Counsel and Director General, Criminal Law Policy Section, Department of Justice
They would have to undertake that analysis. That is my understanding.