Public Safety Committee on Nov. 17th, 2010

[Maria Mourani, Bloc, Ahuntsic, QC]

I am disappointed and astonished to not have had an opportunity to hear you about what's happening with Mr. Fadden and also the content of that famous report.

That's it for my preamble.

Let us talk now about this bill. You yourself said, at the outset, that part of the initial bill has already been adopted. I think that we have covered, in good faith, the essential part of the initial bill which dealt not only with serious sexual offences, but also sexual crimes as a whole and serious personal injury offences.

Would you agree with me that we have already dealt with that part?

[Vic Toews, Conservative, Provencher, MB]

We dealt with Bill C-23A.

[Maria Mourani, Bloc, Ahuntsic, QC]

Very well.

I'm a bit worried about something in Bill C-23B. There is a complete ineligibility to record suspension not only for all Schedule 1 offences, but also under the three-strike rule. It means that someone who has been indicted on voyeurism charges—not by way of summary conviction but by indictment—who is then picked up for smoking marijuana and commits a minor theft after that will never be eligible for a record suspension.

Is that interpretation not correct, Mr. Minister? Have you followed me?

[Vic Toews, Conservative, Provencher, MB]

Yes, I have. I was just checking on some of the facts.

On the issue of voyeurism, all I can indicate is that it's a very significant precursor to more dangerous actions. We've had a very recent case that gripped the attention of Canadians and illustrates exactly what voyeurism can lead to--not in every case, but it's certainly a very dangerous indication of something disturbed in the individual.

[Maria Mourani, Bloc, Ahuntsic, QC]

Yes, but it's not systematic, Mr. Minister.

[Vic Toews, Conservative, Provencher, MB]

I'm not saying that in every case a voyeur goes--

[Maria Mourani, Bloc, Ahuntsic, QC]

That is the sense of my question. Schedule 1 includes a large number of offences that are not only offences against minors. If you say that it will only apply to offences against minors, we shall all agree. However, the list includes indecent exposure; a host of other offences are included.

Maybe Madam could tell us how many offences are included: 20, 30?

[Vic Toews, Conservative, Provencher, MB]

Schedule 1 is quite extensive, but it doesn't preclude the granting of a suspension of record in every case. As I indicated, if the individual can demonstrate that he or she was close in age to the victim, or the offence did not involve a position of trust or authority or the threat of violence or intimidation, a suspension of record could be granted. That is my understanding of schedule 1.

[Maria Mourani, Bloc, Ahuntsic, QC]

When we read section 9, it refers to every person convicted for an offence under Schedule 1. The three-strike rule is not even mentioned. Under section 9, if you have committed an offence listed in Schedule 1, you are not eligible for a record suspension.

For example, if you are a 30-year-old man looking at a woman who is taking her clothes off in her home and that her furious husband lodges a complaint against you for voyeurism, you will get a criminal record and you will be considered a sexual offender.

Mr. Minister, people who have committed offences listed in Schedule 1 will be included in the sexual offenders database. So everything is linked.

[Vic Toews, Conservative, Provencher, MB]

I got your point, but it's wrong. The right interpretation of the law is under clause 9 in proposed subsection 4(3). If you go to proposed subsection 4(3) it says:

A person who has been convicted of an offence referred to in item 3 of Schedule 1 may apply for a record suspension if the Board is satisfied that

And then we get into these conditions that they weren't in a position of trust, they weren't in a position of authority, they were close in age to the victim, there was no threat of violence or intimidation. Then a record of suspension could be granted. So the parole board in fact then considers the circumstances and says, “Look, in this type of a situation the conditions have been met, the person can make the application, and we will determine on the facts whether it's applicable or not.”

So in the case of the voyeur, there is no automatic preclusion of applying for that suspension of record.

[The Chair, Conservative, Kevin Sorenson]

Thank you very much, Mr. Minister.

We'll now move to Mr. Davies.

[Don Davies, NDP, Vancouver Kingsway, BC]

Thank you, Mr. Minister.

Mr. Minister, I'll pick up right there, because with the greatest of respect, I believe you're incorrect about this. And it could be a question of sloppy drafting, but Bill C-23B says, in proposed subsection 4(2):

(2) Subject to subsection (3), a person is ineligible to apply for a record suspension if he or she has been convicted of

(a) an offence referred to in Schedule 1;

Now the exception you refer to, subsection 4(3), says “A person who has been convicted of an offence referred to in item 3 of Schedule 1”—it's not schedule 1, but item 3 of schedule 1—“may apply for a record suspension if the Board is satisfied that” the person was not in a position of trust, the person didn't use violence, and less than five years....

I'm looking at the schedules, and there are three pieces to schedule 1. There's 1, “Offences”; 2, “Offences”; and 3, “Offences”. Item 3 of schedule 1 is a very short version. The offences that are being referred to here in section 1, voyeurism, etc., are not covered by the exception to which you refer. So I would ask you to perhaps revisit that. It could be what you intend, but the way it's drafted now, it is not schedule 1; it is item 3 of schedule 1 that allows that exception.

[Vic Toews, Conservative, Provencher, MB]

All right. I don't want to get into too much of the detail. Certainly you've heard what my intentions are.

In speaking to Ms. Campbell, she indicates that in fact is the impact of the law as drafted, the way I've explained it. Perhaps that is something you might want to raise with Ms. Campbell after I leave here, or she can take up your time now. It makes no difference to me.

[Don Davies, NDP, Vancouver Kingsway, BC]

Sure, we can ask her.

[Vic Toews, Conservative, Provencher, MB]

But you've heard what my intentions are in the bill, and I'm trusting Ms. Campbell and the justice department drafters, that the intention is respected in the way the legislation is drafted.

[Don Davies, NDP, Vancouver Kingsway, BC]

Okay, fair enough. So you don't mean that anybody who's convicted of an offence in schedule 1 would never be precluded from making an application for a pardon.

[Vic Toews, Conservative, Provencher, MB]

In certain cases.

[Mary Campbell, Director General, Corrections Directorate, Department of Public Safety and Emergency Preparedness]

If I could just clarify very quickly, clause 9—

[Don Davies, NDP, Vancouver Kingsway, BC]

Actually, Ms. Campbell, I will ask you questions when you're here after the minister. We only have the minister for—if the minister doesn't want to answer, I'll move on to a different question.

[Vic Toews, Conservative, Provencher, MB]

I'm going to defer that to Ms. Campbell—

[Don Davies, NDP, Vancouver Kingsway, BC]

Then we'll ask Ms. Campbell after.

[Vic Toews, Conservative, Provencher, MB]

—because I don't think your interpretation is correct. Ms. Campbell has the correct interpretation.

[Mary Campbell]

The minister's faith is well placed.

[Don Davies, NDP, Vancouver Kingsway, BC]

Okay. I can read, and I'm a lawyer too, and it says item 3 of schedule 1. Item 3 means something. You act as if those words are not there, with respect.

Mr. Minister, last June the New Democrats worked with the government to pass what I think we all agree are important changes to strengthen the pardon system in Canada. The NDP pushed to fast-track the proposal to give the National Parole Board discretion to deny pardons in any case of an indictable offence or an offence by summary conviction if it involved a sexual offence against a child, if this would bring the administration of justice into disrepute.

The NDP also pushed...in fact it was our party that insisted the list include manslaughter, which is the provision that ensured Karla Homolka would not be eligible to apply for a pardon this summer. Thanks to all parties' work on this issue, under the Criminal Records Act it is in effect today.

I think it can be said that the parole board now has the discretion, which you properly identified it was lacking before, to deny pardons for any kind of serious offence, as all indictable offences or sexual offences involving children are.

I'm wondering, Mr. Minister, isn't it better for the National Parole Board to have that discretion to grant or deny pardons in individual cases where it's appropriate, or not to do so, rather than have arbitrary categories like more than three indictable offences, or a certain offence, and you're precluded forever from having a pardon? There are varying factors. Not all offenders are exactly the same.

[Vic Toews, Conservative, Provencher, MB]

I agree that not all offenders are exactly the same.

I remember that discussion about manslaughter. I believe what happened in that case was that the Bloc said they didn't want to see anyone denied a pardon if the offence was a sentence of less than two years. I think the original intent was always to have manslaughter there. I recognize that we did have a very good discussion among all parties, and I'm very grateful to all parties for moving that ahead.

I disagree that a judicial tribunal, whether it's a court or an administrative tribunal exercising quasi-judicial functions, should have the discretion to allow the granting of a sentence or an order where it's clearly contrary to the public interest.

Our government is very clear that there are certain mandatory minimum prison sentences where we say that it would be inappropriate, from a public policy point of view, to grant a house arrest, for example. From a public policy point of view, in the situation with first- and second-degree murder, there should be mandatory periods of ineligibility for parole--mandatory.

Similarly, our government has come to the conclusion that the cases in which we are saying there are no valid public policy reasons to grant a pardon...in this particular case, I think it is justified. At least the rights of the victims outweigh the interests of the convicted criminal, who has deliberately broken the law. I have indicated that I'm very firm on the issue of the sexual offences.

There are certain exemptions. You've indicated you might have some concern about the drafting. I'm willing to have my officials look at it.

With respect to some of the other ones, I'm not as flexible.