Evidence of meeting #29 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 punishment.
A recording is available from Parliament.
Conservative
Frank Caputo Conservative Kamloops—Thompson—Nicola, BC
When you say “gross disproportionality” and “we can expect”.... Obviously, there is some ambiguity whenever something is not defined in legislation. Is that right?
Counsel, Criminal Law Policy Section, Department of Justice
We can expect that the courts would have, as I said earlier, a robust body of case law to rely on, given the threshold that was used, but that's correct. If it's not defined, it is open to the courts to interpret.
Conservative
Frank Caputo Conservative Kamloops—Thompson—Nicola, BC
The Supreme Court of Canada is the highest court in the land, as we all know, and it has taken a living tree approach to all sorts of law. In fact, in the Rodriguez decision—if memory serves, it was in 1993—the judges said there was “no constitutional right” to die, as in there was no constitutional right to kill oneself through what we then called euthanasia.
Carter came along in 2015. That was a mere 22 years later. That's not very long in the life of the law. Carter came to a completely different conclusion after just 22 years. There was no new statutory law that Carter was based on. Carter wasn't interpreting a different provision of the Criminal Code or of some other federal legislation. Carter was an application that said they wished to engage in what was rebranded as medical assistance in dying, just as Rodriguez was seeking, I believe, to strike down the Criminal Code prohibition on euthanasia.
They were both asking the exact same question and the court came to very different conclusions only 22 years later, when the body of law—that which was being considered—was largely the same. I don't think I'm going out on a limb here.
The point I am trying to make is that “grossly disproportionate” is what the court is saying today. Do you have any idea about what the court will say tomorrow?
Senior General Counsel and Director General, Criminal Law Policy Section, Department of Justice
I understand the question.
I think, as Ms. Burt has said, there is a fairly robust body of jurisprudence on gross disproportionality. We know it's a high threshold. We know it's not something that is routinely meant to be bound to exist. The courts have talked about it as being something that outrages society's sense of decency that the punishment in a particular case would be so excessive.
However, I think you are correct, Mr. Caputo, in the sense that what those concepts mean continues to be informed by judicial interpretation and guided by stare decisis.
Conservative
Frank Caputo Conservative Kamloops—Thompson—Nicola, BC
Exactly. You said it much better than I could have; you said it so much more eloquently.
The point is that nowhere in Bill C-16 is “cruel and unusual punishment” defined. Is that correct?
Senior General Counsel and Director General, Criminal Law Policy Section, Department of Justice
That's correct. In choosing the standard, the government has made a policy decision to import the jurisprudence that Ms. Burt and I have talked about in response to different questions.
Conservative
Frank Caputo Conservative Kamloops—Thompson—Nicola, BC
It's interesting that you say they've chosen to import the jurisprudence, because they haven't chosen to codify the jurisprudence. Isn't that right?
Senior General Counsel and Director General, Criminal Law Policy Section, Department of Justice
I think in using the standard of cruel and unusual punishment, the intent is that the courts would be guided by the jurisprudence that interprets that concept.
Conservative
Frank Caputo Conservative Kamloops—Thompson—Nicola, BC
I agree with you that that's what they are saying, but they haven't said.... For instance, the bill doesn't say, “You will be subject to a mandatory minimum penalty unless the penalty would be grossly disproportionate in the circumstances.” They didn't say that. Do you get what I'm saying? It is a different.... They're using the section 12 language. They're not using the section 12 test.
Do you get what I mean by that?
Senior General Counsel and Director General, Criminal Law Policy Section, Department of Justice
I think so. The test is different, Mr. Caputo. The point of proposed section 718.4 is to provide the courts with a mechanism by which they can depart from the imposition of a mandatory minimum penalty in very circumscribed circumstances in a case where—based on the facts in that particular case, the seriousness of the offence and the degree of the responsibility of the offender and other sentencing principles—the imposition of the MMP would, in that case, to use the language of the court, outrage society's sense of decency.
Conservative
Frank Caputo Conservative Kamloops—Thompson—Nicola, BC
That's a really interesting one.
I'm going to talk for a second here on outraging society and decency, because in the Senneville case, in the court's eyes, to impose a one-year mandatory minimum would outrage the sense of decency in society. That was the court's decision, whereas I think a lot of Canadians here...and I'm not assailing the court's decision. I'm speaking about what I think, what I hear from constituents, which is that the striking down of that actually outraged a number of Canadians and their standards of decency.
One of the interesting things we have to look at is what is in Bill C-16 and what isn't in Bill C-16. I spent far too long dealing with sexual offences against children. One of the highlights in coming to Parliament Hill was meeting Justice Moldaver, who, for those who don't know, was on the Supreme Court of Canada until, I guess, roughly 2020, and maybe 2022 or something like that, and somebody here probably knows better. I met him and I referenced the Woodward decision on Internet luring. I could talk about this for hours.
Conservative
Frank Caputo Conservative Kamloops—Thompson—Nicola, BC
You know? Oh, come on. It would be so insightful, would it not, Ms. Lattanzio?
Conservative
Frank Caputo Conservative Kamloops—Thompson—Nicola, BC
What Woodward said was about Internet luring and its minimum penalties. It talked about this insidious crime and how the range should probably be from three to five years. That was when Parliament had a 10-year maximum.
I will make this point very quickly. Nowhere are we dealing with mandatory minimums on sex offences in Bill C-16, the most insidious types of offences: production of child sexual abuse material, Internet luring, offences like that. It should be there.
Thank you.
Liberal
Conservative
Larry Brock Conservative Brantford—Brant South—Six Nations, ON
I have another motion for consideration on unanimous consent that I have shared with the parliamentary secretary. I wish to read it out as follows:
Should Bill C-16 pass the committee stage on May 6, 2026,
And notwithstanding any motion previously adopted by this committee, following the completion of clause-by-clause consideration of the bill, the Standing Committee on Justice and Human Rights prioritize its work as follows:
1. At the May 25, 2026, meeting, the Minister of Justice and Attorney General appear for no less than two hours regarding his mandate and priorities, as per the motion unanimously agreed to on September 23, 2025;
2. The committee consider Bill C-231, an act to amend the Youth Criminal Justice Act, on May 27, 2026, provided that the sponsor of the bill be invited to testify, along with any other witnesses deemed relevant by committee members, and that, following the testimony, the committee immediately proceed to clause-by-clause consideration of the bill, and the chair only be authorized to adjourn the meeting after clause-by-clause consideration of the bill is completed;
3. The committee consider Bill C-235, an act to amend the Criminal Code, increasing parole ineligibility, on or before June 1, 2026, provided that the sponsor of the bill be invited to testify, along with any other witnesses deemed relevant by committee members, and that, following the testimony, the committee immediately proceed to clause-by-clause consideration of the bill, and the chair only be authorized to adjourn the meeting after clause-by-clause consideration of the bill is completed.
Liberal
The Chair Liberal James Maloney
Do we have unanimous consent for Mr. Brock to introduce that motion?
Bloc
Rhéal Fortin Bloc Rivière-du-Nord, QC
Can we have the text of the motion? If not, can it at least be sent to our P9?
Liberal
Liberal
The Chair Liberal James Maloney
I call this meeting back to order, please.
The motion, I understand, has been circulated by email.
Mr. Fortin, did you receive a copy?
