I'm still with Mr. Drapeau, in spite of the explanation. The reality is that you're going to have maybe very few cases, as few as four, but the numbers are going to grow as this bill moves forward—assuming it gets through the Senate quickly, but if not, it's going to be even more so.
What you're really doing is denying that group of people, a short list, or perhaps a somewhat longer list once they find out about Trépanier and say, “Yes, I want to exercise my rights; I didn't think I had them before,” because the case law was on both sides of the point. In fact, the leading case law before Trépanier would have been that they didn't have this right. Trépanier has now given that to them. On top of that, now the legislature of the land, in the form of Bill C-60, is going to give that to everybody else but deny it to them. It is not logical. It's not consistent with the way law should be drafted.
Secondly, I'm very concerned about the message the Supreme Court may take from this legislation with clause 28 staying in. I don't know if you can appreciate this, but here's what we have.
We have the Trépanier decision, which says this is the model you should be following in terms of the election in the way trials should be conducted and the right of the accused to make those elections. We are now coming in as the legislature and saying, “Yes, we recognize that and we agree with the Federal Court of Appeal.” But if you're sitting there as a Supreme Court justice, you're then looking at clause 28 and saying, “Okay, you've done all that, you've recognized the Court of Appeal decision, you've carried out your responsibilities to put that into play in Bill C-60, but you're denying it to this small group of people.”
I don't want to be the lawyer acting in front of the Supreme Court to try to rationalize that on our behalf, as the legislature of this country.