Evidence of meeting #39 for Public Safety and National Security in the 40th Parliament, 2nd session. (The original version is on Parliament’s site, as are the minutes.) The winning word was corrections.
A recording is available from Parliament.
Conservative
The Chair Conservative Garry Breitkreuz
Let's all proceed with an open mind. Let's listen very carefully now to our—
Liberal
Conservative
The Chair Conservative Garry Breitkreuz
Yes, and I wonder how many Canadians understand the terms.
Let's all listen very carefully and try to make our decision on what we hear in the next few minutes here.
Ms. Campbell, please.
Director General, Corrections and Criminal Justice Directorate, Department of Public Safety and Emergency Preparedness
Thank you, Mr. Chair.
You're much more attentive than my law students, I can tell you.
I can obviously not comment on the merits of the proposal but simply inform on the background. When officials looked at the amendment, one of the things we did was to consult with the drafters at the Department of Justice. So all I can advise the committee, as Mr. MacKenzie has done, is that the response we got from the legislative section was that only English and French words can appear in the statute. I appreciate that this is odd, because my colleague Mr. Hoover looked in the index to the Criminal Code, and of course the words mens rea appear there. However, he advises me they do not appear in the section in the code itself.
Of course those of us who have been to law school spend enormous amounts of time learning Latin phrases in the law and use them quite regularly, but that is a bit different from their role in drafting a statute.
The other thing I did was to go back to Black's Law Dictionary, 8th edition, as this is the standard dictionary. Modus operandi is in there, along with many other Latin legal phrases. It's defined in Black's as “A method of operating or a manner of procedure; esp. a pattern of criminal behaviour so distinctive that investigators attribute it to the work of the same person”.
I sought also instruction in the French and found a very useful volume entitled Les locutions latines et le droit positif québécois, which also contains modus operandi and defines it as
a "Way of working, operating, doing, method of acting."
The last point I would make is that this phrase does not appear in the Ontario sex offender registry statute or regulations, and the challenge in identifying elements in section 8, of course, is to be precise enough that all field officers are able to input accurate relevant information. There is some concern among officials that the phrase, although well understood in a popular context, may not be sufficiently precise to allow police officers to identify what needs to be in there. And of course in section 8 they're receiving the order from the court, so they are to a large extent going to be reliant on the court information. So things like a name or fingerprint or the precise offence are very easy to put in a header to a field and to enter. There is some concern that anything like MO or the English or French words that define it would lack that kind of precision.
That's simply a comment on the technical aspects, not obviously on the merits of the proposal.
Douglas Hoover Counsel, Criminal Law Policy Section, Department of Justice
I just wanted to add that while Parliament is its own master and it may put into legislation whatever it chooses, ultimately this would be a precedent, in our view. And if you used Latin language in a Canadian statute it may have no force and effect in law. So you may want to be aware of that. And again, I think it is translatable into English and French.
It would be certainly our position that it would be enforceable if it's in English and French and possibly not enforceable if it's in Latin.
Director General, Corrections and Criminal Justice Directorate, Department of Public Safety and Emergency Preparedness
I would just add one thing, which I meant to say and then overlooked, Mr. Chair. Just also bear in mind, as has been said before, that the registry is one tool for police in investigating crimes and presumably at some point in preventing them. Other tools remain at their disposal, and what occurred to us of course was the tool known by its acronym ViCLAS, the violent crime linkage analysis system. This is a system maintained by police in relation to high-end violent offences. Former police on the committee may correct me, but in that database one might well find information about MO or related issues.
Police investigating the disappearance of a young child can go to ViCLAS as well as to the national sex offender registry and can compare the information in both. So if there were a distinctive element in the disappearance that matched something in ViCLAS, that information—the person's name—could be compared against the sex offender registry to see if in fact that person lived in the area of the disappearance.
Conservative
The Chair Conservative Garry Breitkreuz
Could you suggest some words that we could substitute, so we wouldn't keep running into the problems you are suggesting?
Conservative
The Chair Conservative Garry Breitkreuz
I've asked a question and then you can ask a question, Mr. Holland.
We're possibly going to reach an impasse here, and what can we do about that?
Director General, Corrections and Criminal Justice Directorate, Department of Public Safety and Emergency Preparedness
I don't have anything to suggest immediately. If the committee wished to stand it down for a few moments, the officials could take advantage of the direction of the committee to see if they can come up with something.
Conservative
The Chair Conservative Garry Breitkreuz
Okay.
Does anybody else have any suggestions?
Mr. Holland, and then Mr. Oliphant.
Liberal
Mark Holland Liberal Ajax—Pickering, ON
I guess the problem I'm having is that “modus operandi” appears in the Oxford English Dictionary as part of the English vernacular. There are many such words. Mens rea is another example that was referenced that's actually become part of the English language now. Our language is based on Latin. Our word origins are Anglo in some cases, Saxon in others, and German or French in others, and we also have Japanese words. All of our words originate from other languages. This is not a virgin language, and after a period of time, the use of a word in our vernacular makes it part of our language.
My definition of when a word becomes part of our vernacular is when it appears in the Oxford English Dictionary, which is something of a bible of our language. So I'm having a little bit of difficulty understanding why we can't use certain words, because then I'm led to wonder what words, with what origins, we are not allowed to use. If we can't use words with a Latin origin, even if they have a contemporary meaning and are in an English dictionary, then what are the other expressions we are not allowed to use? And is there a dictionary of terms I can draw from that I'm allowed to use, and other terms that I'm not?
I'm confused by this, because the term mens rea, as an example, has a very specific meaning. If I say that a person had insufficient mens rea to comprehend the crime committed, it has a very particular context—though I suppose there's another way of articulating that too.
So I'm not understanding this. I think it puts us at a great disadvantage, and perhaps the best way to do it is to ask the officials to take some time to think about other wording, and also to answer the question generally of where we can draw our language from.
Conservative
Liberal
Rob Oliphant Liberal Don Valley West, ON
I agree with Mr. Holland and would like that tested out first, but I'd also like to test.... I'm new to the clause-by-clause process, and this is the first time I've dealt with a piece of legislation. I've been an MP for a year, but it's the first time I've done clause-by-clause, so I don't quite know the procedure for how we test out the principle of what I think both of these amendments are about.
I think they're the same or very similar, and I think they are consistent with testimony we heard in our study on the legislation itself—not the study on this bill, but the study we did the week before. But I don't know how we test out whether we're in agreement.
This will strengthen the registry. This will give another tool to police. I think that's what the government side is asking for. We think this makes it better and more effective legislation, but I don't want to waste a lot of time on Latin-English-French words, whatever, unless we know whether or not everyone's in agreement. I think we have the votes anyway.
NDP
Don Davies NDP Vancouver Kingsway, BC
I just checked with our legislative expert. I don't know how this happened, but this was submitted. It doesn't really matter. I have language here that I think might accomplish this now. I'm going to read it again. It would add the following: “...a description of how they committed each crime of a sexual nature, of which they were convicted.”
When I read that information before, my Bloc colleagues told me that wasn't broad enough in terms of what they meant to capture by their concept. If I'm paraphrasing correctly, they want something that would capture the internal motivations of the perpetrator. But when I heard the reading out of the meaning of “modus operandi” in Black's Law Dictionary, modus operandi does not include a concept of internal mind. It's the pattern of how something was committed. With that in mind, if my Bloc colleagues are intent on putting in language that they would like to see that is broader than that, then that's up to them. But what I would suggest is that the language I've drafted—and I'm prepared to circulate that here—is something that's written in English, and it does add what I think most of us want added, subject to debate on the merits, which would be helpful for police.
If the registry knows that someone likes to commit a particular crime against children by using particular toys to lure the children.... Let's say they have a pattern of hanging around schools with a little puppy in their hand. That would be helpful information, probably, in a registry. I actually think this is better than trying to get into what their particular mindset might be, because it's objective. Where there are patterns of means of committing an offence that may be helpful for police to know when they're searching a registry.
I would once again just reiterate that I do have language drafted that I would put forward for the committee to look at if they think that captures what they want.
Liberal
Mark Holland Liberal Ajax—Pickering, ON
Can I get an answer on this? It may seem like déjà vu that I'm talking about this, but can I get an answer on what is verboten for me to use? I don't understand this concept.
Liberal
Liberal
Mark Holland Liberal Ajax—Pickering, ON
—is that we use a lot of language that we borrow from other languages, and we're being told that we can't use this because it's a Latin expression. I'm making the point that it's in the Oxford English Dictionary as part of the English vernacular. How is this distinction being made? This is how Latin and other terms and words are. I'm trying to understand that distinction.