[Recorded by Electronic Apparatus]
Monday, November 11, 1996
.1035 
[English]
The Vice-Chair (Ms Torsney): Order.
Would you like to start?
[Translation]
Ms Carole Brosseau (Barreau du Québec): Good morning. I'll speak first. I am accompanied today by two members of the Barreau du Québec's Standing Committee on Criminal Law.
I'm going to explain to you briefly how our institution operates by telling you that the Barreau du Québec calls upon experts in the various fields of law. In criminal law, in particular, we have a Standing Committee on Criminal Law consisting of defence attorneys, Crown attorneys and university professors, so that all criminal positions are represented in the recommendations we make in our briefs.
Today, we have come to submit our recommendations and comments on two bills, C - 17 and C-27.
Mr. Battista is a defence attorney and Ms Anne-Marie Boisvert is an associate professor of penal and criminal law at the Université de Montréal.
Before giving the floor over to Mr. Battista, who will speak to you about the Barreau's position on Bill C-17, I would like to draw your attention to a correction on page 3 of our brief concerning Bill C-17. In the first line of the third paragraph, you should read "59" instead of "52".
Mr. Giuseppe Battista (Barreau du Québec): Good morning.
[English]
Maybe it will make things easier if I express myself in English.
[Translation]
Perhaps I'll speak in both languages to facilitate matters for everyone.
[English]
I will deal with five topics concerning Bill C-17. The first one is appearances by detained people through closed circuit television. The others are presumptions with guilty pleas; treatment of accused people, the issue that the doctor who testified before you earlier dealt with; consent to treatment; appeals before the Supreme Court; and amendments to bail provisions.
The first point is the issue of appearances of detained people through video cameras. There are three areas in the law that deal with this matter. We have clause 59, which deals with the appearance of an accused or the arraignment, l'étape de la comparution, as it's known in French; clause 84, which deals with appearances before the board, le comité d'examen; and finally, clause 111, which deals with the summary conviction appearance of detained people who are in institutions.
Fundamentally, the position of the Quebec Bar on this is very firm, and there's a strong consensus among all the interveners. We agree in principle with the idea that new methods of telecommunication should be introduced. They could be advantageous to all parties. However, what is fundamental to us is that the consent provisions be maintained.
There were amendments to the Criminal Code introduced by Bill C-41, if I'm not mistaken - or was it Bill C-41?
The Vice-Chair (Ms Torsney): We're being told that it was Bill C-42. There were Bills C-41, C-42 and C-45.
Me Battista: Okay, so it was one of those.
When it was first introduced there were provisions that provided that, with the consent of the accused and the prosecutor, appearances could be done by way of telecommunication. That is being amended with clause 59, and we are opposed to that.
.1040
Our concern is that when people are detained, the idea of being brought before a justice of the peace within 24 hours is something that is fundamental to any democratic regime. The principle behind this is that the state has now detained someone. The state has now removed this person from public society and has brought this person somewhere, presumably to a police station. The law requires that a person be brought before a justice of the peace within 24 hours so that detention can be verified. The Criminal Code has provisions for this and they have been upheld by the courts as being fundamental to determining whether or not detentions have been arbitrary.
What this provision allows is for appearance by video, but the accused person is not brought physically before a justice of the peace to verify that person's detention. In principle, there's no problem if the accused consents to this procedure. But if the accused does not consent to this procedure, what you have is an individual who is being detained, who is not brought physically before a justice of the peace or a judge, and who will be brought away somewhere in some detention centre while only making an appearance through video.
There is one case, the case of R. v. Fecteau - and I'm sorry I don't have the citation, but I believe it was decided by Justice Campbell of the Ontario High Court - that dealt with the issue of appearances through video telecommunications at a time when the Criminal Code obviously did not provide for it. But Justice Campbell certainly raised the same concerns we're raising here. There's no problem when consent is given by an accused. When consent is not provided by an accused, however, then we think there's a problem. Our Criminal Code provides for it, but our Criminal Code basically articulates a longstanding principle that was articulated in the habeas corpus cases. Basically, a person who is detained and arrested has a right to be brought before a judge immediately, as soon as possible, unless this person consents. So our concern with this is the removal of the consent provisions, and I would be more than glad to deal with any questions about the subject.
I think a good illustration of what should be done and what can be done comes with clause 111, where it's provided that we can proceed this way with the consent of the accused. Clause 111 seems to encompass a very wide variety of procedures. It provides for more than the initial arraignment or the initial appearance. It provides for actual... I would be inclined to interpret it as even allowing a guilty plea.
For example, someone is sentenced to four years in a penitentiary and there's an outstanding shoplifting charge. It would be a tremendous cost to everyone to have this person transported from the penitentiary facility to the courthouse. We can proceed by way of videoconference and the person can actually plead guilty. With consent, there's no problem. The accused would be properly informed, would presumably be represented by counsel, and would have received all the adequate information. There is no difficulty.
So what we see is that these new technologies provide for greater efficiency and can respond to the interests of all parties, but the consent provisions are absolutely fundamental because this unbalances the game. It allows the state to determine who will appear before a justice of the peace and who will not. The accused has no choice in this. The accused is detained and is brought somewhere. If a prosecutor decides this detained person will appear before a judge, this detained person does. If the prosecutor decides that we're going to proceed by television in this case, we'll proceed by television. So to us, there's an imbalance and there's an unfairness. But as we say, it's not an insurmountable problem. Consent will be obtained when it's in the accused's best interest.
The other concern attached to this is that the Criminal Code provides for arraignments within24 hours before a justice of the peace. How are we now going to justify a period of more than an hour or two after detention? If the system of videoconference is set up and we have a television camera in a police station, then why is this person not going to appear within half an hour after they've been brought into a police station? How would we then justify a 24-hour detention period? So I think there are a lot of issues that underlie these provisions that introduce new technologies, and the consent is a fundamental issue.
Unless there are questions, maybe I can move on to the next point. Is that fine? Ça va?
.1045
One important issue of concern is clause 80 of Bill C-17, which modifies subsection 657.2(2) of the Criminal Code. It covers the presumption that a crime has been committed when the party pleads guilty to the initial offence. So what section 657 provides for is that a person who is charged with receiving will be faced at his or her trial with the fact that a crime has been committed because a third party has entered a plea of guilty in their file on their charge.
Suppose I am charged with receiving. The issues at trial are whether or not there was a theft, and whether or not I am a guilty party to an offence. The fact that a third party pleaded guilty will become a factor against me at my trial, because if they pleaded guilty, then we know the crime was committed. We're therefore only dealing with whether or not I'm a party to an offence.
There was a case in the Quebec Court of Appeal, R. v. Janoff - and you have the citation on page 7 of our paper - that dealt with the constitutionality of a similar provision. That provision was deemed unconstitutional, and it never went to the Supreme Court because the Attorney General's office accepted the decision. So the case of Janoff was a precedent on that issue, and what it created was a presumption against an individual that is not necessarily linked to or tied to the facts. The Supreme Court tells us that whenever we want to use a presumption against someone, there has to be a rational connection between what is presumed and what we will assume, both legally and in fact, against an individual. These provisions put an accused before a fait accompli, if you so wish, by the action of a third party. We submit to you that this is unfair, and we doubt it will pass a constitutional challenge.
The third point I'm going to deal with... I know you had someone here before me who spoke on this matter, and he seemed to be very competent in the field. I'm sure he was able to give you all the information you needed, but on page 10 of our presentation we deal very briefly with the very idea that clause 86 of Bill C-17 proposes to amend section 672.55 to include treatment upon consent. We agree with that idea. We think it's a good idea.
I understand you will be reviewing this matter, because I heard the interventions of one of the hon. members. We think it is important that whenever amendments of this nature are envisaged, you should also envisage accompanying amendments that allow for modifications in due course. For example, suppose an accused accepts a treatment on the day of the decision. Six months down the line, either the treatment is causing side effects that people agree are terrible, or the person wants to change psychiatrists for what may be very legitimate reasons. There's no mechanism provided in the law, so we're going to be in a situation in which there's a sort of legal void. People will then be improvising much in the same way as they're doing now. So as far as I understand it, this provision is basically an amendment to the Criminal Code in order that it catches up to day-to-day practices.
I can tell you from experience that the usefulness of a section of this nature is relative. When a person who needs psychiatric treatment agrees to take the treatment, there is never a problem. The problem occurs when the person no longer agrees. When a court orders this treatment, it can often act as an incentive. It's very positive in that sense. However, if the incentive provision can't be modified, then it's not an incentive any longer. The person will violate the provision, so you'll have him or her in a catch-22 situation. Terrible side effects are suffered if the person continues to take the medication, but there is no way of amending a judgment that has been rendered. From that perspective, we think there should be mechanisms provided for.
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The next point is appeals to Supreme Court of Canada. The basic concern we have with the proposed amendment in clause 99 of Bill C-17 is the situation that it creates. A person who has been acquitted in the first instance, and who has subsequently seen that acquittal overturned by a court of appeal, will now only be able to go to the Supreme Court of Canada on a question of law upon having received permission to do so.
I can hear the argument on the other side that says there may be ridiculous legal arguments raised and we don't want to be wasting the court's time. That's fine, and those appeals will be thrown out. But the problem is that when someone has been acquitted and that acquittal has been overturned, you're dealing with a person who was presumed innocent and whose innocence has been maintained. However, on appeal on an issue of law, a court has now decided to order a new trial. There can be a tremendous prejudice, such as in a situation where the appeal court's decision was wrong. People will say the Supreme Court will grant leave to appeal if the issue is that important. Well, maybe it will and maybe it won't. The issue is that an innocent person - or person presumed to be innocent - was acquitted and that the acquittal was overturned.
We should be as generous as we possibly can be in ensuring that people who are acquitted once do not have to uselessly go through a trial a second time. If the legal issue has no foundation and no merit, it will be thrown out and there's no concern for anyone. There will be a new trial if the Court of Appeal orders a new trial and the Supreme Court rejects the legal argument. There's no problem. But if that legal argument has any chance of success at the Supreme Court, then the Supreme Court should be the final arbitrator of that and there should be no need for leave. There shouldn't be a restriction placed upon a person who has been acquitted in first instance.
So that's where our concern lies with that. It's an amendment that will in fact restrict appeals to the Supreme Court for people who have been acquitted.
Finally, this is the last point I will comment on. The concerns we raise are with the amendments to the bail provisions. On page 4 of our paper, we deal with amendments to subsection 515(10). They are in subclause 59(2) of Bill C-17.
You will recall that in the Morales case, the Supreme Court of Canada struck down the provision that stated that a person could be held in custody if it was in the public interest. In our view, this amendment, which will add paragraph (c) to subsection 515(10) of the Criminal Code, is another way of saying ``public interest''. I have the French version here, and it says:
[Translation]
c) il est démontré une autre juste cause et, sans préjudice de ce qui précède, sa détention est nécessaire pour ne pas miner la confiance du public envers l'administration de la justice,...
[English]
What our code provides for now is the protection and safety of the public. If you have a person who is charged with a criminal offence and who is presumed to be innocent, and if the courts have any evidence that suggests the public safety is at risk, that the public needs protection from this individual, the courts have all the power and all the latitude to intervene.
When the Morales case was argued, what was brought before the Supreme Court was the argument that courts had started interpreting the public interest notion as - to characterize it using an article written by Maître Francis Brabant - something you could reduce to hard drugs, no bail. If someone was charged with an offence involving hard drugs, there would be no hope of getting any bail even though that person did not present a safety risk, that person did not present a danger to the public at large, and there was no reason to believe that the person would again engage in that type of activity.
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In our view, that was what contributed to the striking down of the public interest notion, because it was vague, it was general, and it allowed for that type of interpretation. I understand that here we're making an effort to state things, such as considering the circumstances, whether the charge appears to be on solid evidence, and so on. I hope that every time someone is charged the charge rests upon a solid foundation.
The issue is that with the Criminal Code as it now stands, and with the striking down of the excessive aspects of the bail provisions of the Criminal Code, we see no reason to amend it. There have not been any major cases where people have been granted bail in situations where the public safety was at risk or where the protection of the public was in any way jeopardized. For those reasons, we have serious concerns with the idea of wanting to extend provisions that would deny access to bail.
Let's not forget that sometimes people who have been detained on public interest issues have also ended up being acquitted. So we're dealing with someone who's presumed innocent. We're not dealing with a repeat offender who has broken bail conditions 15 times. We have provisions to deal with that. We're dealing with a situation where the public confidence... So for the public's confidence we will detain someone who may eventually be acquitted. In our opinion, there needs to be more than that to deprive someone of their freedom at that early stage.
There are other issues we comment on. I tried to focus on what are maybe the major points that we think are important. There are some discrepancies between the French version and the English version. Sometimes people who write the legislation will have better ways of expressing it than we have. We're not concerned with that. But there are some discrepancies and we raise them with you for your consideration.
If there are any questions, I'm available.
[Translation]
The Vice-Chair (Ms Torsney): Mr. Bellehumeur, do you have any questions?
Mr. Bellehumeur (Berthier - Montcalm): I have no questions on Bill C-17. Your brief is sufficiently clear. We have discussed these matters on a number of occasions and have already expressed our concerns. I also met with the people of the Department of Justice in Quebec City, who explained certain points to me. I have no questions.
The Vice-Chair (Ms Torsney): Mr. Maloney.
[English]
Mr. Maloney (Erie): I have one question on your presentation on appearance by video at the hearing. If there's no consent given, would you envisage a lot of court challenges on this?
Mr. Battista: I think it's fundamental. I practise as a defence attorney, and my view of this is that when people are dealing with appearances through video they're never talking about their own children or about members of their families. My experience is that when someone has a son or daughter, a brother or sister who's charged with an offence for the first time in their life and the person is brought into custody, they want to know where that person is, how that person is feeling, they want to be reassured that everything is being done properly and that the system is working and functioning well. The fact that an attorney can meet the client very quickly, can speak to the person, can reassure everybody, is fundamental.
The fact that the person will be brought before a justice of the peace within 24 hours is also fundamental. Attorneys tell their clients, ``Don't worry, nothing can happen to you. You will be brought to court tomorrow at this time. Don't worry about it.'' The families can be told this. When a system like this is instituted, that will no longer be the case.
Now, that doesn't mean that people's liberty is in jeopardy, but the perception can be such and the system has to adapt. That's my point. If the system adapts and makes it more interesting for an accused person to use this process, then fine. It then becomes an additional tool, which is efficient and also responds to the needs of all the people involved, including the accused, the accused's family and the justice system.
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But if it's done without consent, certainly there should be court challenges, because what we're doing is denying something that's as old as the Magna Carta; it's habeas corpus - a person is being detained by the state. The state has to justify that detention before an independent judicial body. That's what the appearance serves.
Our position is that this can be done. There's not only one way of doing it, but there's a way in which it's been done for hundreds of years and in all democracies there are provisions of this nature. And habeas corpus is a fundamental of all of that. What we're saying is that if we're going to tamper with that, fine, but let's do it with consent. If it's beneficial to the accused, the accused will always consent.
If an accused can be guaranteed, for example, that they will appear before a justice of the peace within a matter of hours - and let's assume that the position of the crown is that they will not object to bail if the appearance is done before a justice of the peace but they want some specific conditions to be imposed and they want to make sure it's a judge who imposes those conditions so that the accused sees that it's a judge who's imposing those conditions - fine. If it can be done within three hours, why would we want to wait for a 20-hour period that will be required to transport him from one holding centre to another holding centre and then to the courthouse? Fine, we'll do it and there will be no problem. I don't see where any objections could be raised on that basis. It's definitely in the accused's interest and it's definitely in the system's interest that we save a whole bunch of costs.
In our view, that's the approach that should be taken. Let's make it interesting so that people will consent to this procedure, but let's not remove the fact that right now state authorities have to bring a detained person before an independent arbiter within 24 hours. That's what the issue is, and that's an issue of principle; it's not an issue of administrative commodity. The video is administrative commodity. It's one method that can satisfy everyone's needs.
Justice Campbell raised this. He said ``How do I know where this person is? How do I know this person is where the authorities tell me he is?'' These are the kinds of issues. Obviously we're not in 1984, we're in 1996, and we're in a democracy and no one is concerned. However, when we're dealing with criminal justice and individual liberties, appearances are often just as important as the reality.
The provisions that state that within 24 hours people have to be brought before a justice of peace do just that: they reassure everyone and they provide a reassuring public image of the justice system.
Thank you, Madam Chair.
The Vice-Chair (Ms Torsney): Can I suggest that we move to Maître Boisvert?
[Translation]
Ms Anne-Marie Boisvert (Barreau du Québec): I believe I understood that I was the last in a long series of speakers and I thought I would tell you I would be brief. I'll be brief all the same.
I'll tell you first that the Barreau du Québec shares Parliament's interest in the subjects addressed in Bill C-27 and shares Parliament's view as to the importance of its objectives.
In my presentation, I will limit myself to three remarks which we think are fundamentally important.
Subclause 2(3), which refers to section 212, provides for a mandatory minimum prison term of five years for procuring.
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The Barreau would like to restate its disapproval of this tool of mandatory minimum prison terms. It is partly a question of principle.
Since Parliament has just passed or implemented a new Part XXIII of the Criminal Code, which lays down applicable sentencing principles and also establishes for the first time a list of aggravating factors which judges must take into account, the Barreau finds it hard to understand why, a few months later, Parliament does not trust the judiciary and is requiring judges to hand down mandatory minimum five-year sentences in all cases.
It is true that the type of procuring contemplated in section 212, which is punished by a mandatory minimum sentence, is particularly serious. Nevertheless, this provision covers a vast range of actions, as does the notion of violence. A distinction must be drawn between extreme violence and a slap in the face. The bench is being stripped of the opportunity to consider the circumstances surrounding a particular type of conduct. The Barreau sees no interest in limiting the judiciary's discretion as is proposed here.
The minimum five-year term provided for is particularly high. Five years is not negligible in the range of sentences. Furthermore, there is reason to fear that imprisonment for a minimum of five years could be counter-productive. In certain circumstances, we should not be surprised to see plea bargaining and even judges acquitting individuals on technicalities, simply to avoid having to hand down the severe mandatory minimum sentence that is here provided.
The Barreau's view is that it would be preferable to allow the courts to apply the guidelines that Parliament has just given them under sections 718 and following of the Criminal Code. Sometimes in wanting to do too well, there is a danger of being counter- productive. That's my first comment.
Somewhat in the same vein, on page 7 of our brief, we discuss clause 3 of Bill C-27, which proposes that murders committed when the accused is engaged in intimidating the victim be added to the list of first degree murders. Here again, characterizing this conduct as first degree murder affects the penal consequences or the sentence and its severity.
It is the Barreau's view that putting this new offence on the list of first degree murders ultimately serves no valid purpose from a sentencing point of view. For example, marital homicides often involve harassment or intimidation, although they are committed in situations where there is no premeditation. Other factors are often involved.
It is the Barreau's view that the potential dissuasive effect justifying this inclusion in the list of first degree murders simply would not be felt in the situations contemplated. The Barreau sees no point in this measure. We are nevertheless talking about murder and thus about an offence that is already punishable by life imprisonment and for which a large limitation and lengthy prison term before any possible of parole are provided.
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It seems completely redundant to add this offence to the list of first degree murders.
In my last remark, I refer to pages 8 and 9 of my brief and will discuss clause 5 of the bill. It may be a surprise for you to learn that, in this instance, the Barreau's view is that the bill does not go far enough. We understand that, through the amendment to section 268, Parliament wishes to ensure that a parent or guardian cannot consent to genital mutilation for a young person. The Barreau is in full agreement on this provision. However, in light of the case law, the Barreau wonders whether it would not be appropriate to provide as well that a person over 18 years of age cannot consent to this kind of mutilation.
As it reads, by expressly providing for cases of consent given for persons under 18 years of age, the bill could be interpreted as suggesting that individuals 18 years of age or more are free to consent to the kinds of genital mutilation contemplated.
As you know, the case law, in particular Jobidon v. The Queen, has recognized that there are public order limitations to the ability to give consent for certain injuries to be inflicted. The limits in Jobidon, however, are not clear. We know that Jobidon leaves open the possibility that people may consent to valid surgical procedures. But what is a valid surgical procedure?
We also know that individuals may consent to injuries for a socially useful cultural reason. In light of the issue here, we feel it would be appropriate to state specifically that, at no time, regardless of the age of the individual, may consent be given for the types of mutilation contemplated in the bill and that the bill should not be read as a licence to consent after the age of 18.
I told you I'd be brief. I'll stop here, unless, of course, you have questions.
The Vice-Chair (Ms Torsney): I believe you have some questions, Mr. Bellehumeur.
Mr. Bellehumeur: Yes, I'm going to start, then I'll give the floor to my colleague Christiane Gagnon, who I am sure was very happy to hear your remarks. In any case, it was very refreshing for a Bloc Québécois member to hear you state this position since we were virtually the only ones who said what you're saying now. But I think that's going to change. I see Mr. Roy who is here. I think the wind is about to shift.
With regard to consent and your interpretation of the Jobidon decision, what I have to say is more of a comment than a question. I entirely share your view on this point and I also appreciate what you say in your brief where you state that there is a message to convey, and I believe this is what the government also wanted to do; it's a matter of education. I believe we must go further in this specific provision of the clause.
I will ask you a question, even though I think it has already been explained to me clearly enough. I would like to hear you in your capacity as an expert in this field who has considered the subject. In subclause 5(3) of the bill, where excision is made an offence, specific provision is made for an exception in the case of a surgical procedure performed by a person qualified to practise medicine. Do you think it was appropriate to include this exception to the section and why?
Ms Boisvert: I believe so. I can imagine cases in which an excision may already have been performed halfway by individuals not qualified to practise medicine. Some excisions are performed in kitchens using pieces of broken bottles. It may be necessary to complete the operation in proper conditions.
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Nor should it be forgotten that, in Canada, and this is a situation that I can imagine, there are a certain number of women who have already been partly or completely excised and who may have gynecological problems or who will literally have to be unstitched, opened and I don't know what in order to deliver their babies. I believe we have to retain the exception provided for here. It seems to me to be particularly well drafted since it concerns the health, the physical health of the individual.
Perhaps you will remember the time when there was a debate on the abortion provisions and provision was made for the possibility of therapeutic abortion where necessary for health reasons. The whole debate was instituted as to whether psychological health came within the concept of health. The exception in this case is very much limited to cases where physical health requires it. Consequently, I see no difficulty with the exception.
Mr. Bellehumeur: I understand you and I agree with what you say, particularly with the examples you gave. I think this covers that.
You will probably answer no, but I would like to know whether you consider this exception is a duplication since one of the general sections at the start of the Criminal Code protects physicians who legally perform a surgical procedure or whatever. Is this a duplication?
Ms Boisvert: I don't think so since a specific type of behaviour is contemplated. Section 45 of the Criminal Code would not necessarily have protected physicians performing abortions at the time when abortion was prohibited. I believe it may be important to retain this exception for the medical establishment.
Mr. Bellehumeur: All right. My last question concerns the minimum five-year prison term which I first agreed on. I have since heard testimony on this point on two occasions and Parliament seems to be sending a contradictory message, to borrow the term you used.
If I understand you correctly, you are suggesting that this minimum five-year term simply be removed from subclause 2(3) and that the maximum period be retained.
Ms Boisvert: Traditionally, Parliament has expressed its view as to the gravity of offences by the maximum penalty it has set.
Mr. Bellehumeur: Yes. If we make it an offence of this kind, from what I understand of your testimony, the judge will automatically be more inclined to hand down tougher sentences based on all the circumstances and the context and invoking sections 718 and following of the Criminal Code.
Ms Boisvert: Yes. In one sense, it's already covered. We fear that, by depriving judges of their discretion and fixing a minimum five-year prison term, people may at times resort to manipulation in order to circumvent this minimum term, which is nevertheless severe.
Mr. Bellehumeur: That's correct. You fear that counsel and even judges will resort to technicalities in order to get out of a situation, feeling that a five-year term makes no sense. Ultimately, you can always find some sort of technical provision.
Ms Boisvert: This is one of the reasons Mr. Justice Lamer invoked in a Supreme Court judgement in R. v. Smith, in contending that a minimum seven-year term for importing narcotics was unconstitutional.
I could add that five years is not very different from seven years in the range of sentences that we are familiar with. We should not be surprised if constitutional attacks and arguments are raised as to the constitutional validity of the minimum five-year term.
Mr. Bellehumeur: Minimum five-year term.
Thank you. I have no further questions, but rather a remark. I would have liked you to make these comments before my friends from the Reform Party because, for them, it's never enough. I would have liked you to be able to convince them to cooperate in this direction.
The Vice-Chair (Ms Torsney): Your friends?
Mr. Bellehumeur: My friends, yes indeed. Let's say instead my colleagues next to me. That's more accurate.
The Vice-Chair (Ms Torsney): Ms Gagnon, I think I can allow you three minutes.
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Ms Gagnon (Quebec City): I would like to add a few comments and thank you for coming here today.
I am particularly happy that we are discussing this bill in which I have a particular interest. I have introduced a bill on the same subject. We are studying my bill at the same time as we are considering the Minister's bill. I introduced it for the specific purpose of sending a clear message to all stakeholders, those in the legal field and in the cultural communities concerned. You will note that I drew no distinction between a Canadian citizen of ethnic origin who adopts these kinds of practices and a Canadian citizen. I thought it important that there not be any double talk. The consent issue was also one of my concerns. You rightly mentioned that you are apprehensive that people might understand that consent is possible after the age of 18.
I would also have liked this bill to include the principle of extraterritoriality. As you know, the Canadian citizens we are speaking of are often of other origins and have ultimately adopted the values and culture of this country, of Canada. Sometimes they return to their country of origin and take part in the excision of young Canadian girls who, in many cases, were born here. I would have liked this to be included in the bill, as the issue of sexual tourism was. What do you think?
Ms Boisvert: If these provisions were passed in part, I would like the Criminal Code to cover the situation that concerns you to the extent that it constitutes a crime in Canada. We are talking about a plot to go commit a crime elsewhere.
Ms Gagnon: I know, but why then is it necessary to state clearly the extraterritorial scope of sexual tourism in the text of this bill, whereas mutilations come under the general provisions of the Criminal Code?
If we want to send a clear message, there must be no opportunity for interpretation. Why not state it specifically at this time, when there are no prosecutions, since we know that this is being done? Young girls born here leave and are excised elsewhere, then returned excised.
I feel that, if we saved only a few, if the mothers who do not want their children to be excised were aware that at least the Criminal Code gave them enough grounds to justify their position, we would have accomplished something.
Ms Boisvert: There's nevertheless a slight difference since, when a young girl is taken away in this manner, you can be fairly sure that there has been a plot behind that behaviour, whereas, when you talk about sexual tourism, you're talking about an adult who goes somewhere else to do what he would not want to do at home. In that case, perhaps we are slightly more in need of an elastic.
I believe the message is already clear here. Personally, before making another exception to the principle of territoriality, I would first try to see what the impact of this act is.
Ms Gagnon: Thank you.
The Vice-Chair (Ms Torsney): Now, Mr. DeVillers.
Mr. DeVillers (Simcoe-North): Ms Boisvert, I would like to speak about the Barreau du Québec's objection to the minimum prison terms. Yesterday, our committee heard the same objections and the same recommendations from the Canadian Bar Association. However, you said that, in cases where minimum prison terms are fixed, it is harder to find the accused guilty. Do you have any studies or research that could support your statement?
Ms Boisvert: I don't know of any studies or research personally.
Mr. DeVillers: Has work been done in this field?
Mr. Battista: My colleague mentioned the fact that Mr. Justice Lamer invoked this point in the Smith case.
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Perhaps you recall the Smith case. A person was liable to a minimum prison term of seven years for importing narcotics into Canada. It was a minimum seven years from the outset no matter whether you imported a marijuana joint or a kilogram of heroin. If you were the judge at the trial of a person charged with importing a joint, perhaps you would be more inclined to reasonable doubt than in any other case. Mr. Justice Lamer referred to this saying: "Pick your own reasons - people being acquitted for pick your own reasons."
We were talking about this doctrine a great deal with regard to the acquittals in England at the time when the death penalty applied to a host of offences. Juries were acquitting people so that they would not be executed. We're saying that there may be cases where a five-year prison term will be the only penalty justified in the circumstances, but we are convinced that not every case deserves the same sentence. The basic principle of sentences is that they must be tailored to the individual.
I'm thinking of the example your colleague cited earlier, the example of the attorney who said it was not true that he would do what he had to do so that an individual not be sentenced to five years. Perhaps the accused committed the offence, but other information in the attorney's hands suggested it would be unfair to sentence him to five years. In this kind of situation, what is this individual to do but change the charge, find another charge that corresponds to the same punishment objectives, but that would mean the accused would not be forced to serve a five-year prison term? The situation arises each time minimum sentences are fixed.
I am a criminal law practitioner and we witness this situation. Too often, Parliament is thinking perhaps of a very nasty criminal who deserves five years. In fact, some people may not deserve this punishment, but they nevertheless deserve to be convicted and they find themselves in the system that will have to adapt. It would be difficult to give you statistics on people who have been acquitted, although practice and reason lead us to this conclusion.
Mr. DeVillers: And your experience as a practitioner. Thank you.
Ms Boisvert: I would like to add that all this has a harmful effect because, according to public opinion, to avoid a mandatory minimum sentence, the charges are "rigged", if you will permit that expression. We have a problem with sentences and guidelines. We find ourselves with an individual who has committed a certain offence and who, for unknown reasons, is charged with an offence that does not correspond to what he committed. This entire situation ultimately causes a spiral that results in the alienation of the public and sometimes a legislative reflex toward more exemplary punishment and stiffer minimum penalties, which aggravates the problem. We would like to warn you against this.
Mr. DeVillers: Yes, thank you very much. Thank you, Madam Chair.
[English]
The Vice-Chair (Ms Torsney): Mr. Maloney.
Mr. Maloney: With respect to your comments on section 3, you suggested that in conjugal homicide there's often no premeditation; it's just in the impact of the moment that there's an unfortunate incident. In your experience, however, threats of death are often made prior to such an incident happening. Would that not have a deterrent effect on such individuals? Do you not have family problems where the wife will complain that he threatened to kill her, and then in fact eventually he does? Would it not have a deterrent value to have that section in there?
Me Battista: The Criminal Code provides for that already. Criminal harassment is provided for; uttering death threats is provided for; and if the crown is capable at the trial, is able to prove that there was premeditation, it will be a first-degree murder.
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But what this provision does is it says in a case where we know it is not a first-degree murder - it's a murder in the sense that the person wilfully caused the death of another person, so we're in what was commonly called a second-degree murder - we will now call it something else because there is evidence of harassing behaviour beforehand, and that behaviour encompasses a wide variety of activity.
In the examples you give of a person who has said ``I will kill you; you watch it,'' you have what we would call a prima facie basis to establish that there may in fact have been premeditation here. So this section wouldn't give anything more. All this does is change the penalty to a person who has wilfully caused death to someone, and by taking into account their past, we're considering it now a first-degree murder. But with these sentencing provisions, a judge can say ``In your case, you, defendant, are convicted of a second-degree murder, but I have evidence before me that you have had a very violent past with this person, so therefore on sentence, because it is my discretion to give you more than a ten-year minimum, I will use the provisions of the Criminal Code and give you a parole ineligibility that is much higher than what I would give to another person, because I have this evidence''.
So the Criminal Code already has the tools that are required to punish people who commit that type of murder and in those circumstances, and it also has the tools required to deal with the dissuasive effects to dissuade individuals from harassing their spouses and from committing acts of violence with them. This provision is simply a punitive provision. What it does is raise the bar of the sentence.
The argument my colleague was making is that it is not going to dissuade the individual who does not control his or her activities and who is involved in this cycle of violence. The sentence is not going to change this person's mind.
Maybe more interventions should be made at earlier levels. Maybe women's centres should be given more funds, for example. I know it's not something popular to say these days, but maybe that's where the resources should go if we want to have a more dissuasive effect and to bring more assistance to people who are victims of these scenarios.
Simply increasing the sentence, in our view, will not do anything to dissuade a person who has already made the decision to kill, because that's what we're talking about here.
It's first-degree murder when murder is committed in certain circumstances. So in order to be convicted of murder, that person has to have wanted to cause death. If that person is prepared to go that far, then 10 years, 15 years or 20 years is not going to dissuade them. They've made the most brutal decision that can possibly be made: they've decided to kill. That's what our point is.
Ms Boisvert: In your example there was premeditation and this is already first-degree murder.
Mr. Maloney: It may not always be premeditated. It may just be an off-the-cuff comment in the heat of anger the first time, the second time, and a third time, again, off the cuff. But in the heat of anger - bang! - it happens.
[Translation]
The Vice-Chair (Ms Torsney): Ms Gagnon.
Ms Gagnon: I would like to clarify your remarks and confirm whether I correctly understood them. The bill the Minister is introducing on genital mutilation concerns only the individuals who perform the procedure. My bill was much broader in scope and concerned all individuals who took part in the procedure, since we know perfectly well that this is a crime by association. I would have liked every person who directly or indirectly takes part in the procedure to be prosecuted. I believe you agree on this point.
Ms Boisvert: These individuals are already contemplated by sections 21 and 22 of the Criminal Code.
Ms Gagnon: I wanted it to be specifically stated in this bill because the bill had a purpose. It had to be clear enough, particularly for those who would have to interpret the act.
The text of certain statutes reproduce what already appears in the general part. Why not do so in this bill, particularly if it has a very specific scope and must be clear and precise? Although I don't have the list with me here, I have already cited certain other cases of very specific bills in which general directions are also included.
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In my view, the scope would have been much clearer since this is a cultural practice about which we often do little. It is important to be clear. This statute is specifically about genital mutilation. I know this has already been done elsewhere. There are cases that have been cited here.
Ms Boisvert: I don't really know how to answer you since I think it is clear enough to say that this is a crime. Why state it specifically when there is general agreement on this point? The scope of the Jobidon decision is not particularly clear, but we can already suppose that, in any case, regardless of the bill, this kind of mutilation is contrary to the public order.
This bill may not have been necessary except to spread a message. Would it be useful to send all the variations on this message and to recall that aiding and abetting and other provisions also apply in this case?
This has already been done for other bills. The general scope has already been cited in very specific bills. Given that this bill is highly symbolic, why couldn't we do the same? It only amounts to two lines.
Me Brosseau: With your permission, I will briefly describe the attitude that the Barreau has always adopted with regard to specific rules where general rules already apply.
Generally speaking, the Barreau has always assumed - and here I am speaking subject to correction because, as you know, we have not at all discussed this, as Ms Boisvert said - that it was not necessary to regularly alter the nature of the Criminal Code in order to get down to specifics. If a general rule can apply, by definition, we always trust the justice system as we currently know it and the courts. In this way, we avoid altering the nature of the Criminal Code. I believe that, in rereading the provisions of sections 21 and 22, you will realize that they are fairly specific in this regard.
The objective was to create a specific aggravated assault offence and to name it. The purpose here was integration, sociologically speaking. Having said that, if the Barreau had to consider and rule on the matter, I believe it would avoid getting down to specifics.
If you carefully examine Bill C-17, you will see that the specific provisions often suggest that one refer to the general part. Provisions already exist; why create new ones?
By legislating and legislating, we can lose our way. Moreover, we have noted that Bill C-17 amends provisions that have not been in existence since the recent amendments.
We must avoid legislating merely for the sake of legislating. The objective - and this is what we have understood from Parliament - appears to be achieved. The only clarification we are requesting is with respect to the individual's consent, since the individual is subject to family pressures. It was with this in mind that we make this comment.
Generally speaking, I believe we should avoid making specific provisions where the provision is general and there are adequate general provisions. We have a good system of justice. We have courts that, to date, have rendered good judgments. We have case law that is at times pithy, although often fairly precise. I believe we must rely on our system.
The Vice-Chair (Ms Torsney): Thank you very much. Mr. Kirby.
[English]
Mr. Kirkby (Prince Albert - Churchill River): I just have one quick question.
You indicated that the present state of the law is such that you cannot consent to having bodily harm inflicted on yourself, and that this section being forwarded indicates that an adult can't consent to bodily harm being inflicted on somebody under the age of 18. You indicated that there is a possibility that this could lead to an interpretation that people over the age of 18 could somehow consent to this type of treatment. Do you view that as a possibility or as a likelihood?
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Ms Boisvert: I would say it's a great possibility. You have what is a question of logic. You have the legislature saying that consent to assault is a defence, but you also have the legislature saying that consent by a parent for a person under 18 is no defence - by implication, consent by an adult over 18. Why not?
Mr. Kirkby: But do you believe judges within this country would make that kind of decision?
Ms Boisvert: Before this amendment, I would have guessed that the court would have said a person cannot consent if the legislature has given the word by saying that a person under 18 cannot consent. I would anticipate that the question would get more complex if the legislature has spoken and has decided that you cannot consent under the age of 18. The question would get more lively.
Mr. Battista: I also add that what you're doing is opening the door to litigating this point. Once you're going to do something, you have to go all the way. If you go part-way, then you're opening an issue by making an issue out of the consent of an adult, whereas if it's clear.... If you didn't legislate on this matter, in terms of what Maître Brosseau was saying earlier, the general comment we had was that this legislation is not necessary. The Criminal Code can deal with it.
If the legislature's objective is to send a message, then let's do it. But if you're going to send a message, send a clear message. Otherwise, it could lead to confusion and you'll have litigation on issues that really shouldn't be litigated.
The Vice-Chair (Ms Torsney): Mr. Maloney.
Mr. Maloney: I just have one question on child sex tourism. Do you have any concerns about the enforceability of the extraterritorial application of our laws child sex tourism?
Ms Boisvert: I will make a personal comment. I like the message, but I think it's wishful thinking as far as the application of it will go. It's already difficult to have cooperation between the police as far as drug dealing goes, as far as laundering money goes. What do you think will apply with the sexual abuse of children in countries that make a commerce and a living off of it? Let's be frank. It will have no...
But I think there could be an impact here. In Switzerland, for example, I know they have that kind of legislation. They haven't been able to prosecute many people for having done things when they've been hidden somewhere outside of the country. They have, however, been able to take action against travel agencies and a certain kind of commerce that goes on in Switzerland before people leave, which is good.
Mr. Maloney: Thank you.
The Vice-Chair (Ms Torsney): If the committee doesn't mind, I have a couple of questions.
On this last point, of course, I think our Criminal Code already covers the arrangement of tours - you can be convicted. The interesting thing for many of the countries benefiting economically from this kind of tourism is that they say it's our problem and we should solve it. You're quite right. So it seems we are caught between everyone because they are saying it's somebody else's problem. Hopefully, with some international agreement, there will be some resources dedicated, along with some opportunities.
I thought it was interesting in that you also mentioned the sexual abuse of children. I wonder if you've thought about the possibilities if this law did not say ``for commercial sexual exploitation'', but instead just said ``sexual exploitation''. For instance, where two Canadians end up in another country and the abuse takes place but there's no money changing hands or no gifts or other remuneration, we could be able to prosecute that case here in Canada with the consent of the other nation. Would you be opposed to this or in favour of it, or have you thought about it?
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Ms Boisvert: I wouldn't be opposed, but how will you prosecute? How will you gather the evidence? It's a practical problem we have. I agree with the message.
The Vice-Chair (Ms Torsney): On my other questions, where you relate to Mr. Battista, I was listening very carefully to the arguments about the deemed-to-be first-degree murder. I was really tending to agree with you until I thought about the fact that I would think there would be cases where the crown was not able to prove that it was first-degree murder and that the stalking and the harassment did not lead up to first-degree murder.
I wonder if there are cases where that has occurred in Canada, and that this isn't intended to stop that from occurring. Because in fact if the crown wasn't able to make that proof, then that could create a situation where we all could be saying of course he was stalking her, and of course it was first-degree murder, but the defence attorney was good and managed to get them off as it is.
Ms Battista: But that will apply to even second-degree murder if the defence attorney is good and they can't prove second-degree murder.
The point is that when you're making the legislation you're saying let's assume some things: let's assume fact A is proved and fact B is proved; where does that lead us?
What this legislation says is we're assuming now that we can't prove first-degree murder, so we don't have that evidence. In fact, let's go further. We know it's not a first-degree murder because our evidence shows us that, yes, he was stalking her, but he never threatened to kill her. He was ridiculously infatuated and could not understand. He was a very depressed, very possessive person. He had a very bad personality, and so on and so forth. But we know he did not intend to cause this person's death, and then he does. One day it happens. So it's a second-degree murder.
All I'm saying is that in those cases where we know it's not a first-degree murder - that's what this legislation is dealing with - we will now call it a first-degree murder for sentencing purposes. What we're doing is changing the minimum.
The truth of the matter is that the legislation, as it now stands, provides for that. If the crown can lead evidence in court that shows this person had an abusive past and was conducting that type of activity, even though that activity is not related to the murder in and of itself, in other words, in a case where we know it's not related, I don't want to... These are very delicate issues, and I understand that. There is no way ever to justify any kind of abuse or stalking of any sort. However, distinctions have to be made. There are some situations where there is a link, and when that link can be made it's certainly a first-degree murder and no one will dispute it. But the law as it now stands allows for that.
All we're dealing with here is sentencing provisions. When a judge is sentencing on a second-degree murder, a judge has latitude from a 10-year to 25-year minimum, so that can be dealt with and judges have to deal with that. With the amendments that have been brought into the Criminal Code that deal with violence in these circumstances, then judges are required by law to consider these matters, so they will be dealt with.
Our concern is how this will dissuade someone who has decided to cause someone's death. That's the ultimate wrong, and they've made that step. So are they now going to start saying that because they've been stalking they shouldn't do it? That's where we have a problem. There's no rational connection to this. All it is is punitive, and there's a way of punishing people for that.
Ms Boisvert: All the things I've alluded to, talking about the five-year minimum, are greater in this area. What do you think people will do to avoid a 25-year minimum? Don't you think there will be plea bargaining if people think it's a 12-year or 15-year minimum that should be imposed, and not a 25-year one? It's such an extreme measure that people will walk around it.
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The Vice-Chair (Ms Torsney): I thought it was interesting to hear where this amendment had come from. It came from the Uniform Law Conference, and it was also interesting that there was a split among the members in terms of what to do: thirteen in favour, ten opposed, and four abstentions.
As my last question for you, Madame Boisvert, if judges didn't want to go for the five-year minimum on the child prostitution case, wouldn't they still be able to use subsection 212(2) and use the maximum 14? Wouldn't they have an option of using proposed subsection (2.1) or subsection (2) in terms of sentencing?
Ms Boisvert: They don't have the choice. If the charge is...
The Vice-Chair (Ms Torsney): The crown would have a choice of prosecuting under subsection (2) or proposed subsection (2.1).
Ms Boisvert: But if they do, it goes back to the problem I've alluded to. As a way to go around the five-year minimum, they will negate the violence aspect of the thing because the reduced charge with no minimum doesn't talk about violence. Maybe that charge will somehow be a misnomer, which is a lot more interesting.
Mr. Battista: If I can add something here, your example is an illustration of what will happen, because what will happen and what does... I believe the bar also intervened on behalf of the issue of the four-year minimum for robberies.
The Vice-Chair (Ms Torsney): With a gun.
Mr. Battista: It's the same problem because you can plead guilty to theft and assault. It becomes a crime of theft and assault, and there's no minimum in those circumstances. Or you could plead guilty to theft or to robbery without any mention of the weapon in the actual indictment, so that you avoid the four-year minimum. The person is then sentenced to two years or three years because that's the appropriate sentence in that circumstance.
What you're saying is that we have one section, but then we have another section we can resort to. Well, that's exactly what happens when a minimum is imposed. As human beings, we're faced with situations in which we know it just doesn't fit. To avoid it, we'll find another section to deal with it.
So what we're saying is to just get rid of the five-year minimum. You could therefore have a maximum sentence when violence is involved, and it is higher than when violence is not involved. The legislature is therefore saying clearly what is more serious in our society, and what should be punished more severely. The courts will then follow the cue.
The Vice-Chair (Ms Torsney): Okay, thanks. Thank you for your testimony and for causing us to think a lot more. It's been great to hear from you, as usual. It was also a nice challenge that we only had the presentation in French. Nobody on our side even mentioned it, but somebody would have mentioned it if we'd had it only in English. Anyway, thank you very much and have a good afternoon.
The committee will rise for about five minutes. We'll then go right into clause-by-clause of Bill C-17. So if the witnesses want to get ready...
Thank you. We're adjourned.