Evidence of meeting #52 for Public Safety and National Security in the 45th Parliament, 1st session. (The original version is on Parliament’s site, as are the minutes.) The winning word was mccann.
A video is available from Parliament.
Conservative
Frank Caputo Conservative Kamloops—Thompson—Nicola, BC
Is your point that this could be superfluous or unnecessary?
Team Lead and Senior Counsel, Criminal Law Policy Section, Department of Justice
For first- and second-degree murder, for example, the automatic penalty is life in prison, so it's difficult to understand what would be “aggravated”, because the maximum penalty is already life. For second-degree murder, courts already do take it into account when determining parole ineligibility, so—
Conservative
Team Lead and Senior Counsel, Criminal Law Policy Section, Department of Justice
I would say that there are many moving parts in the murder sentencing regime in the Criminal Code, and we'd want to be careful not to inadvertently create issues.
Conservative
Frank Caputo Conservative Kamloops—Thompson—Nicola, BC
I apologize for cutting you off.
I don't know how we inadvertently create issues when we say, “This is the minimum, and if you don't tell us where the body is, it could impact your ability to get out of jail.”
I want to address what you just said and something Mr. Powlowski raised, which is that this is already contemplated. This is something that is used, in my view, by the government, and it really doesn't hold weight. I'll tell you why.
We have been told so many times, and we've heard it here today, that we don't need this. When it came to bail in Bill C-75, I believe in a case called Antic, the Supreme Court of Canada said that people need to be released at the first possible opportunity on the least restrictive conditions. That was the law. What did those in government do? They codified the law. They didn't need to. The law was already there, but they chose to codify it.
In sentencing, it is already an aggravating feature to hurt a police officer. That's common law, and yet we codified that in our criminal law. In law, abusing first responders is already an aggravating feature, and yet we choose to codify these things. For sex offences against children, you have to have consecutive sentences already, under common law generally, when it comes to consecutive sentences, and yet we choose to codify.
With all due respect to the things that have been said about this already being the law, this committee and this Parliament shouldn't be picking and choosing whether we codify and whether we need something or not. We have people here who will never be able to put their family to rest with a funeral. If this helps one family, I don't know why we wouldn't be addressing it.
Does anybody care to respond to my concerns?
Team Lead and Senior Counsel, Criminal Law Policy Section, Department of Justice
I don't know if there was a question there.
I can certainly confirm that there are several codifications of common law aggravating factors in the code and that it is not unheard of for the criminal law to be amended to codify the common law. This is certainly an avenue the committee is free to explore.
Conservative
Frank Caputo Conservative Kamloops—Thompson—Nicola, BC
Certainly, and I think that if this is already permissible.... I know constitutionality was raised, but if the reasoning and the logic that are currently permitting the judges or the Parole Board to use this have not been challenged as unconstitutional, anybody raising a constitutionality argument is on very weak ground because that issue hasn't already been raised. In other words, that logic is already being relied upon, so why would we be raising a constitutionality argument when it hasn't been raised?
Do you have any comments on that?
Team Lead and Senior Counsel, Criminal Law Policy Section, Department of Justice
I have no comments on that. Thank you, Mr. Chair.
Liberal
The Chair Liberal Jean-Yves Duclos
We will go to MP Sodhi for five minutes, with the possibility of sharing the time.
Liberal
Amandeep Sodhi Liberal Brampton Centre, ON
Thank you, Mr. Chair.
Before we begin, I'd like to let you know that I will be sharing my time with Madame Dandurand.
I also want to thank the witnesses for being here today. Most importantly, I want to thank Mr. Lloyd for all of his hard work on his private member's bill and for his attention to this matter.
Ms. Wells, I would like to begin with you.
Families deserve to know that an offender's refusal to disclose the location of a loved one's remains is taken seriously by our justice system. Can you please explain how a judge can account for an offender's refusal to provide this information when determining a sentence under the existing Criminal Code? As a follow-up, is there a demonstrated gap in the current framework that would require the statutory creation of a new aggravating factor?
Team Lead and Senior Counsel, Criminal Law Policy Section, Department of Justice
The sentencing principles in the Criminal Code are found in section 718. I believe those provisions were mentioned by previous witnesses.
The fundamental purpose of sentencing is similar to the fundamental purpose of parole, which is to contribute to a just and safe society. We do this in several ways. I'll pull up my notes to make sure I get the language right for you.
That's the fundamental purpose. The fundamental principle of sentencing is that any sentence must be proportionate to both the degree of blameworthiness of the offender and the seriousness of the offence.
In determining a proportionate sentence, judges are directed to look at a number of factors, including aggravating and mitigating factors. The Criminal Code, as has been noted by other members of the committee, has codified several aggravating factors, but courts are not limited by those codified aggravating factors. They can look at the entirety of the offence.
Sentencing in the criminal law, it's trite to say, is a very individualized process. You are sentencing the individual before you for the offence that they committed and the circumstances in which they committed it. It's individualized, but courts do draw from generalized principles in the code.
We do have reported case law that indicates that when an offender hides a body during the commission of an offence in order to impede an investigation, it has a very negative effect on the victims, and that is considered to be an aggravating factor in sentencing. It is not codified in the criminal law, but it is something that courts take into account.
Liberal
Amandeep Sodhi Liberal Brampton Centre, ON
Thank you. I will give the rest of my time to my colleague.
Liberal
Marianne Dandurand Liberal Compton—Stanstead, QC
Thank you very much for being with us today, Ms. Wells. I'm going to continue the discussion with you.
You mentioned documents you could share with the committee. I believe it was information relating to cases where the criminal's refusal to disclose the location of the body had been taken into account. If you do have such information, could you please provide it to us?
Team Lead and Senior Counsel, Criminal Law Policy Section, Department of Justice
If you're referring to the list of cases that we have, I haven't translated it because I didn't bring it for the express purpose of sharing, but we can certainly undertake to provide the committee with examples of judgments in which courts have considered this.
Liberal
Marianne Dandurand Liberal Compton—Stanstead, QC
Thank you. That would be helpful.
Do you know the percentage of cases in which the judge or Parole Board takes into consideration the fact that the criminal will not or cannot disclose the whereabouts of the body?
Team Lead and Senior Counsel, Criminal Law Policy Section, Department of Justice
It would be difficult to provide a proportion, because that would.... When we did the case law research, we were looking specifically for cases in which it was considered. It would be difficult to imagine a case in which it wasn't considered, considering the strength of the case law in terms of what this conduct is.
We have lists of cases only in which it was considered and not those in which it wasn't, so a proportion is a difficult question. Thankfully, these cases are fairly rare in the criminal justice system; however, this means there isn't a vast body of case law on which to draw.
Liberal
Marianne Dandurand Liberal Compton—Stanstead, QC
Certainly, it's absolutely horrific what loved ones go through when they don't know where the victim's body is.
If we want to make the situation better, do you think Bill C‑236 is a good way to do that?
What further improvements can we make to get better answers for the families?
Team Lead and Senior Counsel, Criminal Law Policy Section, Department of Justice
I don't think I'm in a position to explain how to improve the situation for victims within the criminal justice system. You heard from the federal ombudsperson, whose very role is to do that. I have colleagues who work very closely with him, but that is not something I can speak to in the context of this private member's bill.
In the context of the private member's bill, I would reiterate that, at least from a Criminal Code sentencing perspective, courts already have broad discretion to consider this, and my colleagues from the Parole Board and CSC have indicated that there is already broad discretion to consider this.
It will be up to the committee to determine whether more should be done and whether to codify those considerations into law.
Liberal
The Chair Liberal Jean-Yves Duclos
Thank you, Ms. Dandurand.
Mrs. DeBellefeuille, you may go ahead for two and a half minutes.
Bloc
Claude DeBellefeuille Bloc Vallée-du-Haut-Saint-Laurent, QC
Ms. Wells, you told us earlier that you weren't quite sure when it came to studies in Australia showing that the legislation had led to more bodies being recovered. I find that surprising, since various iterations of the bill have existed since 2017 or so.
Don't you have that information available? Doesn't your department know the results of similar legislation in any other G7 or Five Eyes country? Don't you have any such documentation?
Team Lead and Senior Counsel, Criminal Law Policy Section, Department of Justice
Sorry, but I need a little clarification.
Did you refer to Bill C-236 as being around since 2017?
Bloc
Claude DeBellefeuille Bloc Vallée-du-Haut-Saint-Laurent, QC
You were asked earlier whether you had data from the other countries that were referred to. You said you thought that there was a study in Australia, but that you weren't quite sure and that the findings weren't conclusive. I find that hard to believe, because I figured that, after all these years, the justice department would have documented the situations in England, the U.S. states and Australia. You don't seem very knowledgeable. I'm surprised.
Do you have an answer for me?
Team Lead and Senior Counsel, Criminal Law Policy Section, Department of Justice
What I confirmed for Mr. Ramsay in responding to his previous question was that I am not aware of more than he had. We are aware of one study in Australia, and this indicated specifically that no bodies have been found as a result of this law.
Bloc
Claude DeBellefeuille Bloc Vallée-du-Haut-Saint-Laurent, QC
That's what surprises me, Ms. Wells. This isn't the first time your department has had to provide input on such a bill. As you know, Bill C‑424 is a previous iteration, and there were others before it.
How is it that you don't have more information on the countries mentioned earlier, in preparation for this study on Bill C‑236? It seems to me it's your job, your duty, to document this information.
How do you explain that lack of information?