JUST Committee Meeting

STANDING COMMITTEE ON JUSTICE AND HUMAN RIGHTS

COMITÉ PERMANENT DE LA JUSTICE ET DES DROITS DE LA PERSONNE

EVIDENCE

[Recorded by Electronic Apparatus]

Thursday, November 25, 1999

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[English]

The Chair (Hon. Andy Scott (Fredericton, Lib.)): I call the meeting back to order.

I would like to welcome Mr. Roy and Mr. Pruden from the Department of Justice, and Mr. McTeague, who is the sponsor of the original private member's bill, Bill C-202.

We're going to call upon Mr. McTeague to explain his proposed amendments— if everyone has those amendments.

Mr. McTeague.

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Mr. Dan McTeague (Pickering—Ajax—Uxbridge, Lib.): Mr. Chairman, I thank you. I want to first of all move the amendments. There are five of them in all on Bill C-202. I hope I've been able to distribute them to as many colleagues as possible.

First, I move that Bill C-202, in clause 2, be amended by replacing line 4 on page 2 with the following:

vehicle, fails, without reasonable excuse and in

In the second amendment, Mr. Chairman, I move that Bill C-202, in clause 2, be amended by replacing lines 9 to 11 on page 2 with the following:

under subsection (1)

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or

(b) is guilty of an offence punishable on summary conviction.

Mr. Chairman, I also move that Bill C-202, in clause 2, be amended by replacing lines 12 to 21 on page 2 with the following:

Flight causing bodily harm or death

(3) Every one commits an offence who causes bodily harm to or the death of another person by operating a motor vehicle in a manner described in paragraph 249(1)(a), if the person operating the motor vehicle was being pursued by a peace officer, operating... to evade the police officer, to stop the vehicle as soon as is reasonable in the circumstances.

Punishment

(4) Every person who commits an offence under subsection (3)

(a) if bodily harm was caused, is guilty of an indictable offence and liable to imprisonment for a term not exceeding 14 years; and

(b) if death was caused, is guilty of an indictable offence and liable to imprisonment for life.

My final amendment, Mr. Chairman, is that Bill C-202, in clause 4, be amended by replacing lines 1 to 3 on page 3 with the following:

under section 249 or subsection 249.1(3), the accused may be convicted of an offence under section 249 or subsection 249.1(3), as the case may be.

Mr. Chairman, those are the amendments. I am willing to give a brief explanation. It has become apparent over the summer, in the time allowed to deliberate, that the bill as it was originally worded, was not sufficient in and of itself to be put on an equal footing with the dangerous driving provisions. Therefore, raising the two years to five years was to make it consistent with dangerous driving.

The summary addition to the mere offence in and of itself was considered to be important in that there may be the odd example where someone has indeed not triggered the dangerous driving provision and is driving at a very low rate of speed. One thinks, for instance, of the more obtuse example of an O.J. Simpson, or perhaps several police in my community and across this country who have actually witnessed situations where someone has evaded but has not broken any law, and therefore it would be difficult to find a conviction.

I think it also correctly corresponds to some of the concerns raised by committee members here. I should also let you know that I have been in discussions with several colleagues, including the Minister of Justice, on this.

I'm at your disposal for any questions, Mr. Chairman. May I also congratulate you on your new title.

The Chair: First of all, are there any questions to Mr. McTeague?

John.

Mr. John McKay (Scarborough East, Lib.): I don't know whether we're getting into the meat of it too quickly, but you used the word “excuse”. Is there any particular reason why you used “excuse” as opposed to “cause”? Is there any significance in that change? I see it's an amendment, but I don't know quite why.

Mr. Dan McTeague: Mr. Roy will answer that.

Mr. Yvan Roy (Senior General Counsel, Criminal Law Policy Section, Department of Justice Canada): In our code, Mr. McKay, we are referring to reasonable cause when it is for the issuance of a power— a warrant, for instance, to be issued to a peace officer.

The Chair: Madame Tremblay.

[Translation]

Ms. Suzanne Tremblay (Rimouski—Mitis, BQ): Since we could hear you talking to the clerk, we missed the beginning of Mr. Roy's presentation.

The Chairman: I apologize.

Ms. Suzanne Tremblay: It's not your fault. The microphone was left on.

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[English]

Mr. Yvan Roy: I was explaining that under the code, and generally speaking in our criminal law, when we use the word “cause”, it is when we're trying to express a particular threshold for the issuance of a power to the state. When you're talking about someone who would be able to benefit from a defence of some sort, you talk in terms of justification or excuse. It is an excuse when in law you recognize that you will be willing to let someone go because they have something they can't explain. That's why, in the circumstances of this bill, it was suggested that you would be better off with the word “excuse” rather than “reasonable cause”.

Mr. John McKay: I have a second question.

In order to evade the peace officer, do you need that phrase to accomplish what you want to achieve in this bill?

Mr. Dan McTeague: I believe we do, Mr. McKay. I take the point that the act of evasion in and of itself is probably the most important aspect of this, because we're dealing with a matter of flight, of evasion. If I were to remove that sentence, it would seem to me that the bill would be incomplete. I think the words mean a lot, and they convey a very important message to both individuals in society in general and to the courts.

Mr. John McKay: I suppose there's no argument that there's significance in the wording itself. I suppose my concern would be that you raise an additional constituent element of the offence, thereby reducing your ability to obtain convictions. If the language is not that important and it doesn't add anything to the bill, why keep it?

Mr. Dan McTeague: I think the word “evade” in that section is pivotal. The application may or may not have the desired effect. I'm prepared to leave that to the courts to decide, Mr. McKay. I want to provide them with flexibility, at the same time ensuring that the word “evasion” in some way or form is in there.

Perhaps Mr. Roy would like to add to that, if I can leave it to him.

Mr. Yvan Roy: I would share the view of Mr. McTeague. In my view, what needs to be clearly understood by the citizens you're trying to catch with this is that they are getting away from the police for a particular purpose. You are right, of course, in suggesting that that creates a further element that the crown must prove beyond a reasonable doubt. But I think the crux of the matter is to deal with the situation of someone who knows that the police have told him or her to stop, and because they don't want to stop and therefore want to evade the police, they are carrying on. If someone is not going to stop for some other reason—it may be because the traffic is such that if they stop they're going to cause a huge accident—it would either be a lawful excuse or because the crown will not be able to show that these people were trying to evade.

The circumstances that I think the sponsor is trying to capture in the bill require that it would be for the purpose of evading the police that the person would be committing an offence. Otherwise, my fear would be that the net would be cast way too wide.

I happen to think this is the appropriate way of going. I'm sure you're going to capture the right people with this wording, those you and I have in mind.

The Chair: Thank you, Mr. McKay.

The other Mr. MacKay.

Mr. Peter MacKay (Pictou—Antigonish—Guysborough, PC): Just say east coast.

I have a question arising out of something that my colleague Mr. McKay of the other ilk has raised, and that is just the wording... I agree that there is some concern about this onerous element of proving that the intention was to actually evade. Obviously a crown attorney is going to have to produce evidence of that. Presumably the officer, in using the lights, the siren, and in proximity to the vehicle— all of this will be adduced in any event through the evidence.

The use in the preceding line of “without reasonable excuse”— I think I might be correct in saying we talked about this the last time you were here. I'm just curious as to why the words “reasonable excuse” as opposed to “lawful excuse” in terms of its consistency with other Criminal Code provisions.

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Mr. Dan McTeague: You'll appreciate, Mr. MacKay, that I have used the term “reasonable” as the reasonable person test, which is the maxim of law.

As for the purpose of the specifics, I would again defer to someone on this side who may have more to say on that.

Mr. Yvan Roy: I would simply point to a particular section of the code where we have used the very same wording. My friend, Mr. Pruden, was good enough to refer to subsection 254(5), where the words used are “reasonable excuse”. Being a lawyer yourself, you know that when we start changing words, the courts may interpret them in a different fashion. We think it's preferable to go with what has been used before when it's the same concept we're trying to capture, which we think is the case here.

Mr. Peter MacKay: I think the reasonable excuse terminology is correct. I wondered if that had been contemplated.

Thank you, Mr. Chair.

[Translation]

The Chairman: Ms. Tremblay.

Ms. Suzanne Tremblay: Mr. Chairman, I'm sorry but I have a slight problem with the French version. It seems we have two versions of subclause (3). Which one is the correct one?

The Chairman: Mr. Roy.

Mr. Yvan Roy: Two motions have in fact been distributed to committee members. We've presented two possible versions of the motion for your consideration, because both were thought to be interesting. The bill's author, Mr. McTeague, has expressed a preference for the first version, which reads as follows:

(3) Every one commits an offence who causes bodily harm to or the death of another person by operating a motor vehicle in a manner described in paragraph 249(1)(a), if the person operating the motor vehicle was being pursued by a peace officer operating a motor vehicle and failed, without reasonable excuse and in order to evade the police officer, to stop the vehicle as soon as is reasonable in the circumstances.

For the information of committee members, I can tell you that the second version is similar to the first, but contains a description of section 249, although this may not be necessary. Therefore, the first version is the preferred option and that's why Mr. McTeague would like to move this particular amendment rather than the other. We apologize for any confusion.

[English]

The Chair: Are there any other questions?

Monsieur Roy, as officials, do you have anything further you'd like to add to the presentation that's been made by Mr. McTeague?

Mr. Yvan Roy: Mr. Chairman, the Minister of Justice indicated early on that she was supportive of amendments of this nature. Mr. McTeague was gracious enough to consider the possibility of making some changes to articulate better what it is he had in mind. So the credit must go to the sponsor, Mr. McTeague. We have acted as technical advisers, and we are happy to answer your questions.

In terms of a technical adviser, I would simply raise one matter for your consideration, and presumably it has already been covered in the briefings you have received from your staff, but just in case...

Clause 1, which refers to section 227, is probably not needed any more and perhaps should be voted down when you go to clause-by-clause, simply because the section was removed in Bill C-51 earlier this year.

That would be all.

The Chair: Mr. McTeague, you have no difficulty with that either?

Mr. Dan McTeague: No, and not only that it would be redundant and obviously irrelevant, but I appreciate the efforts of the justice department in improving this bill.

The Chair: There being no other questions, we can proceed to clause-by-clause. Bear with me as we go through this.

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(Clause 1 negatived)

(On clause 2)

The Chair: We have three amendments to clause 2, G-2, G-3, and G-4.

(Amendments agreed to)

(Clause 2 as amended agreed to)

(Clause 3 agreed to)

(On clause 4)

The Chair: There's an amendment to clause 4, which is indicated as G-5.

(Amendment agreed to)

(Clause 4 as amended agreed to)

The Chair: Shall the title carry?

Some hon. members: Agreed.

The Chair: Shall the bill as amended carry?

Some hon. members: Agreed.

The Chair: Shall I report the bill with amendments to the House?

Some hon. members: Agreed.

The Chair: Shall the committee order a reprint of the bill?

Some hon. members: Agreed.

The Chair: I understand we have the bill. Congratulations, Mr. McTeague.

Some hon. members: Hear, hear!

The Chair: Since we have no further business, I'll adjourn the meeting and wish everyone a happy weekend.