Justice Committee on June 1st, 2026

[Erin Kelly]

Between the year 2000 and 2020, there were 26 offenders in the custody of Correctional Services who would have fit the fact pattern of the bill. That doesn't necessarily mean they were convicted of all three elements that would be required in the bill, but the fact scenarios of their crimes would have fit that pattern had they been convicted of all three.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

Given the Supreme Court's previous decision, do you think it would be appropriate to use the notwithstanding clause to pass this bill, to protect it from a potential review by the Supreme Court?

I understand that there are distinctions to be made between the Bissonnette decision and what's being proposed here, but there are still similarities.

[Erin Kelly]

This government has not stated any intention to use the notwithstanding clause in relation to this bill, and we cannot comment further on that.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

Yes, I understand, but I'm not asking for your personal or political opinion on the matter, obviously. I'm more interested in your opinion as a lawyer.

In legal terms, wouldn't it be easier to pass this kind of bill if it included a notwithstanding clause?

I'm not asking you to advise the minister on this. In legal terms, wouldn't the use of the notwithstanding clause make it possible to protect the bill in the event of a review by the Supreme Court?

[Joanna Wells]

Thank you for that question and for the clarification.

As my colleague indicated, this government is not on record as wanting to support this bill using the notwithstanding clause. The federal government, as you know, has never invoked the notwithstanding clause with respect to federal legislation but it does remain a legal tool available should the committee feel it's an appropriate use of section 33(1) of the charter to limit charter scrutiny of this particular provision.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

Do you think the bill, in its current form, would withstand a Supreme Court assessment of constitutionality? Would it be acceptable?

[Joanna Wells]

As we have indicated, we expect, and as the committee seems very alive to, that this bill, should it pass, would definitely receive significant judicial scrutiny. We know, because it's a penalty that comes post-conviction for a murder, that the likely charter lens would be under section 12, and the decision in Bissonnette from the Supreme Court would very much guide the considerations. I can't provide any more than that to the committee, but it certainly would be novel.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

If the belief is that rehabilitation is possible, don't you think it would be unreasonable to increase the wait to apply for parole from 25 years to 40?

[Joanna Wells]

The bill proposes discretion between 25 and 40 years. A judge could find that 26 years would be appropriate or 27 years. It wouldn't automatically be 40 years. The difference, as my colleague indicated earlier with the Bissonnette analysis, was that in that case the court was looking at 50 years as the floor, as the starting point for the next period of parole ineligibility, so there are significant differences here with respect to the discretion and the time that the court could order the offender to serve.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

To your knowledge, are there currently any other mechanisms in the legislative arsenal to support or better protect victims' families when there are parole hearings?

[Joanna Wells]

I think the question you're asking is whether or not there are supports for victims with respect to attending parole hearings. Those, again, are not within our expertise.

In our understanding, there certainly are lots of supports available for victims should they choose to attend parole hearings. I understand that's not the intent of the bill, which is to eliminate the parole hearings, but there are existing measures in place to support, yes.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

Thank you.

[The Chair, Liberal, James Maloney]

We'll go to Mr. Brock for the beginning of the five-minute round.

[Larry Brock, Conservative, Brantford—Brant South—Six Nations, ON]

Thank you, Chair.

Thank you to the officials for being here.

I want to start with a general observation. I often hear it, particularly at this committee, when I hear from department officials: Anything that we do as parliamentarians with respect to any amendment in the Criminal Code will always be subject to charter scrutiny.

We should never abrogate our responsibilities or shy away from pushing the envelope in terms of addressing what Canadians want us to address. I think it was well put by Mr. Lawton in the opening round. This country has seen 11 years of a complete removal of any consideration of victim rights. I'm not going to repeat myself because I've repeated it numerous times, but in my view, anything we do will be subject to charter scrutiny.

With all due respect, Ms. Wells, on your comment to Mr. Fortin that in any charter challenge, particularly in the area of this particular private member's bill, the Bissonnette decision would influence anyone bringing a charter challenge, I want to point out that Bissonnette specifically dealt with the stacking element of parole ineligibility. Paragraph 71 of that decision specifically did not rule on the imposition of any period of ineligibility exceeding 25 years as being unconstitutional. They simply were not asked or were not presented with that particular argument.

The two pillars as to why Bissonnette was ruled to be unconstitutional are that it did not provide a realistic prospect of a release within the context of human dignity, and it completely negated the whole concept of rehabilitation, when, in these circumstances, rehabilitation would rank among the lowest of all sentencing considerations. Bill C-235 includes human dignity components, talks about a realistic prospect of a release and certainly talks about rehabilitation.

Given that this has been altered with Bill C-235, are you still confident that this not only could receive significant charter scrutiny but also would be successful as being contrary to section 12?

[Erin Kelly]

I think we would still expect that there would be significant charter scrutiny. This is a very serious penalty. It would expand beyond what is currently the harshest penalty under the Criminal Code. In light of those factors, we do still believe it would be scrutinized.

Whether it would pass a constitutional challenge would really be up to the courts. I think Ms. Wells and I have both mentioned the key distinguishing factor in this case being the level of discretion that judges have. I think that would be a key consideration in a charter challenge under section 12.

[Larry Brock, Conservative, Brantford—Brant South—Six Nations, ON]

Thank you, Ms. Kelly.

Would your position be the same if this were a government bill?

[Joanna Wells]

If I may, I'll ask for some clarification.

[Larry Brock, Conservative, Brantford—Brant South—Six Nations, ON]

If you had to put together a charter statement, would your commentary today be the same as the commentary you would provide in a charter statement had the government introduced legislation along these lines?

[Joanna Wells]

Any charter statement that would be prepared by the government with respect to this would analyze the proposals in Bill C-235 through the lens of section 12, and in doing so would use the analysis in Bissonnette—

[Larry Brock, Conservative, Brantford—Brant South—Six Nations, ON]

Is that a yes, that your position would be the same?

[Joanna Wells]

—to guide its analysis.

The elements that you pointed out, Mr. Brock, as being different, would certainly be considerations that would factor in.

[Larry Brock, Conservative, Brantford—Brant South—Six Nations, ON]

Again, my time is limited, Ms. Wells. Is the answer yes, that your position today to the Minister of Justice would be the same, should he have decided to bring this type of legislation? Please answer yes or no. It's a simple question.

[Joanna Wells]

It can't be a yes or no question because we are unable to provide advice to anyone other than the minister, including the committee. I think my answer stands. As I said earlier, section 12 would be the lens through which it would be analyzed.

[Larry Brock, Conservative, Brantford—Brant South—Six Nations, ON]

Have you done a comparison to any other common law jurisdictions that have a similar type of approach to expanding parole ineligibility?

[Joanna Wells]

The comparison that we've done in international jurisdictions looks to penalties for murder, and Canada is amongst the harshest—