Public Safety Committee on April 25th, 2018

[The Chair, Liberal, John McKay]

Thank you.

As this would have consequences for a number of Ms. May's amendments, I'm going to allow Ms. May to speak on these, please.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Thank you, Mr. Chair.

As Matthew was just saying, there is no need to fix the language that was so problematic in Bill C-51, on advocating terrorism offences or advocating terrorism in general, or all of that. In Bill C-59, we're attempting to fix language for a section that is completely unnecessary and is, in fact, redundant to what we already have in the Criminal Code. As you noted, Mr. Chair, a number of my amendments go to this point, but again, it was the Canadian Bar Association, the Canadian Civil Liberties Association, and the International Civil Liberties Monitoring Group, among others, who asked why we want to insert a redundant provision in Bill C-59 to something that's already covered in the Criminal Code.

[The Chair, Liberal, John McKay]

Before I invite debate, I'm going to note for members that if NDP-95 is defeated, it will affect NDP-96, NDP-99, NDP-100, and NDP-107, as well as PV-41, PV-42, PV-43, PV-44, and PV-45.

With that, we'll have debate.

Ms. Damoff.

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

Thank you, Chair.

We, being the Liberal Party this time, are not supporting the amendment. However, in its place I do have proposed wording that would align—and the official can perhaps weigh in on this when we have it—the wording of Bill C-59 with the Criminal Code.

With those amendments, just so you're aware, Chair, I do have amendments that are consequential to this one for NDP-96, because they both tie together.

[The Chair, Liberal, John McKay]

The only other Liberal amendment I see is LIB-54.

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

I need the process direction from you. We're not supporting NDP-95, but this is the same clause, so we would introduce this change here. It would be a motion from the floor. I don't think you can amend what's there, so it would be defeating this one—

[The Chair, Liberal, John McKay]

You have to defeat it first of all.

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

Right.

[The Chair, Liberal, John McKay]

You have to adopt it or defeat it, and then we go from there.

[Glen Motz, Conservative, Medicine Hat—Cardston—Warner, AB]

I misunderstood what was being proposed.

[The Chair, Liberal, John McKay]

We're just asking for some clarification here. We're going to deal with the debate on NDP-95, and then we're going to go to the vote on NDP-95. Ms. Damoff's argument is that the Liberal Party is going to move something to speak to the concerns raised by NDP-95.

Am I correct on that?

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

That's right.

[The Chair, Liberal, John McKay]

Is that understood, Mr. Motz?

[Glen Motz, Conservative, Medicine Hat—Cardston—Warner, AB]

Yes. I just wanted to know what was being proposed from that side before I decided on—

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

Maybe I got ahead of myself a little.

[The Chair, Liberal, John McKay]

Yes, a bit, but that's all right. It's actually good for the context of the debate.

I think we're still on debate with respect to NDP-95.

Mr. Motz.

[Glen Motz, Conservative, Medicine Hat—Cardston—Warner, AB]

If I understand this correctly, Bill C-59 is proposing to remove the counselling of terrorism as an offence. Is that right?

I need to get this thing back up again.

[The Chair, Liberal, John McKay]

While Mr. Motz is getting technological assistance from someone much younger than he is, I'm going to propose that once we've dealt with clause 143, we have a bit of a health break.

[An hon. member]

No, keep going.

[The Chair, Liberal, John McKay]

Is nobody interested in a health break of any kind whatsoever?

[Voices]

No.

[The Chair, Liberal, John McKay]

Aren't we keen? Okay, I'm happy to sit here.

Are our officials fine as well? Okay.

Mr. Motz, are you back on?

[Glen Motz, Conservative, Medicine Hat—Cardston—Warner, AB]

Yes. I apologize.

Currently, section 83.221 of the Criminal Code speaks to the promotion of terrorism as opposed to the counsel of terrorism. We're back to that legal debate we had during testimony. What's the difference between the promotion of terrorism and the counselling of terrorism? I'm wondering whether it creates a duplicate law by having it changed.

We heard in testimony that it removes protections for victims of hate crimes or violence, and the only judicial decision on this, in R. v. Driver, determined that the language existing today made no change to the burden of evidence. I'm curious to know why we're replacing “promotion” with “ counselling”. It makes no sense to me. I think it actually weakens the intent of this bill. This is exactly the sort of offence that part of Bill C-59 was going to improve, and in my humble opinion, I believe the change of this language actually weakens it.

I'm curious to hear from the Department of Justice official and his backup whether you think this actually improves it. I don't want an opinion, but please explain to me why “counselling” is better language than “promotion”.

[Douglas Breithaupt]

Thank you. Quite a bit can be said.

The Anti-terrorism Act, 2015, did create a new offence of advocating or promoting terrorism offences and the commission of terrorism offences in general. This was to respond to a gap or uncertainty in the law. The pre-existing counselling provisions in the Criminal Code would not apply where what is being counselled was not a specific terrorism offence but any, some, or all of the full range of terrorism offences found in the Criminal Code.

In Bill C-51, the offence of advocating or promoting the commission of terrorism offences in general was criticized for using vague, overbroad, and potentially violating the charter because of its use of the phrase “advocates or promotes the commission of terrorism offences in general”. The government did a green paper consultation and has come back with a proposed reformed section 83.221 with the same intent but with wording to apply a well-known concept of counselling. Essentially it is the same thing. Counselling is the deliberate encouragement or active inducement of the commission of a criminal offence. Essentially advocating and promoting is the same thing, but counselling is clear to understand.

There were briefs and testimony before the committee trying to get clear on how the proposed revised section 83.221 would interact with the current offences of counselling in sections 22 and 464 of the Criminal Code. Some believed that the offence is superfluous and duplicates sections 22 or 464. There was some confusion as to the purpose of the proposed provision. The overlap was intended to give the prosecutor increased flexibility in deciding which offence to charge on a given case, having regard to the particular circumstances of the case.

Bill C-59 proposed, as you can see, a changed offence using a more familiar language, which is a counselling offence. I might just read it. Proposed subsection 83.221(1) says:

Every person who counsels another person to commit a terrorism offence—other than an offence under this section—is guilty of an indictable offence and is liable to imprisonment for a term of not more than five years.

It continues, in proposed subsection 83.221(2):

An offence may be committed under subsection (1) whether or not

(a) a terrorism offence is committed; and

(b) the person counsels the commission of a specific terrorism offence.

Further to the discussions in the committee, and on further thought, the view that the overlap was intended to give the prosecutor increased flexibility was the initial design of the proposed offence or revision of the offence, but we've noticed that section 464 of the Criminal Code provides that, except where otherwise expressly provided by law, where one person counsels another to commit an indictable offence that is not committed, that person is liable to the same penalty as one who attempted to commit the offence, which is generally half the maximum penalty for the completed offence. In the case of life imprisonment, it would be 14 years, for example.

It would be potentially open to interpretation that, due to the exception in section 464, which is a counselling offence that is not committed, the proposed section 83.221 would cap any counselling related to terrorism offences that are not committed at a maximum penalty of five years' imprisonment. This is a legal problem that could significantly limit the punishment available, but could be rectified by amending the bill.

[Glen Motz, Conservative, Medicine Hat—Cardston—Warner, AB]

Are you aware of any court that has ruled that the promotion of terrorism has been ruled to be unconstitutional or against the charter?