[Recorded by Electronic Apparatus]
Tuesday, April 8, 1997
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[English]
The Chair (Ms Shaughnessy Cohen (Windsor - St. Clair, Lib.)): We're back on the record, and we're noting for our witnesses that Mr. Wappel has not only taken off his jacket but he's rolling up his sleeves, so I guess I won't ask him to chair.
Mr. Tom Wappel (Scarborough West, Lib.): It's warm in here.
The Chair: We now have officials from the Department of Justice: Richard Mosley, who is assistant deputy minister; and Paul Saint-Denis, who is senior counsel.
Welcome, and welcome back. Do you have a presentation?
Mr. Richard Mosley (Assistant Deputy Minister, Department of Justice; President, Uniform Law Conference of Canada): Yes, and if I may, I'd like to provide a few remarks at the outset.
The Chair: Sure.
Mr. Mosley: I'm here actually wearing two hats. I'm also president this year of the Uniform Law Conference of Canada, and we understood from the clerk of the committee that the committee wishes to learn about the work that the conference has under way.
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To provide perhaps some background for those members of the committee who may not be familiar with it - I know you are, Madam Chair, from your opportunity to meet with us last summer - the Uniform Law Conference was created in 1918 by provincial governments, acting on the recommendation of the Canadian Bar Association, and has met almost every year since then, with the exception of a few years during World War II. It is made up of delegations or commissioners appointed by the federal, provincial and territorial governments, and each of those delegations consists of persons, either in private or government legal practice, whose experience or subject knowledge may assist the conference from year to year.
The conference also invites observers from the Canadian Association of Provincial Court Judges and the Canadian Judicial Council, and representatives of the Canadian Bar Association may also sit as members of one or more of the delegations.
The mandate of the conference is to facilitate and promote the harmonization of and improvements to laws throughout Canada by developing, at the request of the constituent jurisdictions, uniform acts, model acts, statements of legal principles, proposals to change laws, and other documents deemed appropriate to meet the demands that are presented to it by the constituent jurisdictions from time to time.
There are two sections to the conference: one deals with civil matters, largely the laws of the provinces; and the criminal law section undertakes, among other tasks, the ongoing monitoring of the Criminal Code and makes proposals for amendments to it. In order to carry out this mandate, the conference solicits and receives suggestions for projects and liaises closely with ministers and deputy ministers of justice.
The conference meets once a year, usually in August, for three, four or five days, but throughout the year work is under way by drafting committees, working groups and individuals, who produce documents for consideration at the annual conference.
Usually the civil section will discuss three or four larger topics and a few lesser ones at each annual meeting. The usual procedure is for the policy of the matter to be settled at one annual meeting and a statute to be adopted based on that policy at the next meeting.
The criminal section typically discusses and resolves between 40 to 50 proposals or topics during each annual meeting.
There is also a drafting section that works with each of the two main sections of the conference to prepare the actual draft statutes.
Finally, we have a joint committee for cooperation between the Uniform Law Conference of Canada and the National Conference of Commissioners on Uniform State Laws in the United States to promote the harmonization of laws between both countries.
That is in essence a description of the work of the Uniform Law Conference. With regard to the particular topic that the committee has under review, a resolution from the criminal law section of the conference in 1994 led to consideration of a paper by that conference in 1995, which was then presented by way of a recommendation to the plenary of the Uniform Law Conference for work to be done in this area, and that was reported back to deputy ministers and ministers responsible for justice.
Following that, the conference was asked by deputy ministers to undertake the drafting of the further consideration of the topic, and a paper was then presented and discussed and considered at last year's conference, in August 1996. Following that meeting, deputy ministers requested that the conference move to the stage of drafting a model statute. That work is currently under way. The model statute will be presented to this year's conference in August in Whitehorse, Yukon.
The request by deputy ministers was approved by ministers responsible for justice at their annual meeting in Fredericton, New Brunswick, at the end of February. I mention that to emphasize that this project now has, I believe, the concerted support of all of the jurisdictions.
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The Uniform Law Conference has in fact done work on this subject on prior occasions. In 1984, for example, I was a member of the committee with the heads of prosecutions from New Brunswick, Ontario, Saskatchewan, and British Columbia that developed recommendations for a statute to deal with this issue, recommendations similar to the Son of Sam legislation, which has been referred to earlier this morning. That recommendation was not taken up, in part because of a lack of support within each jurisdiction for the work to be done.
That is not the case today. There is support at both levels of government and within each jurisdiction for this work to be done and brought to a conclusion. It is our intention to do that at the conference in August of this year and then to present each minister with the model statute which will result from the deliberations at that conference.
I think that's all I need to say at the outset, Madam Chair. We would be pleased to respond to any questions you may have.
The Chair: Thank you.
Madam Gagnon, have you questions now? No. Mr. Hanger?
Mr. Art Hanger (Calgary Northeast, Ref.): I'm curious, gentlemen. You mentioned that a similar proposal, or motion, had been put forward back in the early 1990s. You said at that time there was no support for this statute to continue. Had your committee, or your department, spent considerable time drafting that legislation?
Mr. Mosley: There was no drafting. It was in 1984, actually, that those recommendations were made. There was no drafting at that time because there was insufficient support for the project to proceed.
Mr. Art Hanger: So it has been since picked up here by Mr. Wappel and the push has been -
Mr. Mosley: I'm not sure when Mr. Wappel's bill was tabled. The impetus on this occasion arose from a resolution presented by the Province of Saskatchewan to the 1994 conference. I should mention that some attention was given to this as well in the early 1990s, but again it did not result in sufficient support for the project to proceed.
The Saskatchewan resolution in 1994 was approved by the criminal law section and then it went to the plenary of the conference. As a result of that, the paper presented at the 1995 conference addressed a number of issues, such as the constitutionality of dealing with the exploitation of crime. On the basis of the conclusions reached at the 1995 conference the further work was done and discussed at the 1996 conference. Somewhere in there Mr. Wappel's bill may have been tabled. I'm not sure of the exact date when it was introduced.
The Chair: February 1996 - the second time? The first time was when?
Mr. Wappel: In the first session.
Mr. Art Hanger: It's interesting. In a situation such as that of Mr. White, who is not here at present but who has introduced this victims' bill of rights, if it were to come into some form of reality, I suppose, when you're looking at legislation, whatever would have to come forward, would it be going through such a committee as the Uniform Law Conference?
Mr. Mosley: It could if any of the jurisdictions requested that it be submitted to the conference.
Mr. Art Hanger: Is it necessary?
Mr. Mosley: The conference operates only on the basis of submissions to it from delegations who are representing their jurisdictions in both sections, the criminal and the civil side. The only way to have something dealt with at the conference is to have one of the jurisdictions adopt it and present it.
Mr. Art Hanger: I see. Thank you.
The Chair: Just for the record, Mr. White's motion is only a motion. It is not a bill. It's a motion to get this committee to study the issue, which is what we're about to do.
Also, I think it's fair to say the Uniform Law Conference is not a governmental organization per se. You're almost volunteers, are you not, in that sense?
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Mr. Mosley: I guess it's quasi-governmental in the sense that each province and territory and the federal government contribute a modest amount of money each year to support the conference, and the costs of travel and accommodation for each member of the delegations are met by the jurisdiction in question.
There are a number of non-government members. Traditionally, senior members of the bar have been nominated by their jurisdictions, or in those provinces that have them, representatives of law reform commissions have been nominated to attend, as well as academics and government people.
The criminal law side tends to be composed of about two-thirds government officials who are involved in prosecutions, and one-third members of the defence bar, usually with one judge attending as an observer.
I think the civil side is more evenly balanced, 50-50, between members of the private bar and representatives of government departments.
The Chair: Thanks.
Mr. Wappel.
Mr. Tom Wappel: Thank you, Madam Chair.
Thank you for coming this morning.
I'd like to discuss the work of the Uniform Law Conference and specifically the paper you were mentioning. Is it correct that the conference publishes its proceedings?
Mr. Mosley: That's correct.
Mr. Tom Wappel: Would they be in the Library of Parliament?
Mr. Mosley: I expect so. A number of copies every year are distributed at no charge to libraries. I expect it must be in the Library of Parliament.
Mr. Tom Wappel: I'm asking because you have referred to two reports, I believe, and I'm wondering if you could provide a copy of those to the committee.
Mr. Mosley: We would certainly be happy to provide the most recent report to the committee. We have a copy, in both official languages, with us that we can leave with your clerk for reproduction and distribution.
Mr. Tom Wappel: Excellent. Thank you.
Mr. Mosley: We also have a web site that contains documents accessible to any Canadian. The proceedings from the 1996 conference have not yet been uploaded, but I believe they will be in the coming weeks.
Mr. Tom Wappel: You told the chair already, Mr. Mosley, that this is a group of people. I take it I'm not saying anything incorrect when I say it is non-binding. Certainly, even if the Uniform Law Conference of Canada unanimously recommended something, that would not automatically make it a fact that every province and every territory would accept what the Uniform Law Conference proposed. Is that correct?
Mr. Mosley: That's quite correct.
Mr. Tom Wappel: I understand that a joint committee was struck to study the issue of the financial exploitation of crime. Getting back to Mr. Hanger, you candidly pointed out that this issue was first raised in 1984. There was a unanimous resolution, as I'm sure you know, passed by the criminal law section calling for discussion, and - I quote directly from the paper you've quoted from - ``it appears that matters were simply left at that point'' from 1984 until 1994, or 1995, for a period of 10 years, notwithstanding that the matters were identified.
Is it at least theoretically possible that following the Whitehorse conference in 1997, things could again be left for another 10 years?
Mr. Mosley: I should point out there was an intervening effort to try to get some impetus behind the project.
The distinction today is that each of the provincial ministers responsible for justice has indicated his or her support for this work to be done. In fact, several of them have indicated they view it as a high priority and are anxiously looking forward to the results of the work so they can take action on it.
That is quite different from the situation that occurred previously, where there were other priorities of the day and this was something that was being discussed, for the most part, within the Uniform Law Conference and not really anywhere else. Today I think it's clear that we have momentum and we have support at the political level to get this work done.
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Mr. Tom Wappel: You said this was brought back onto the agenda initially by people from Saskatchewan.
Mr. Mosley: That's correct.
Mr. Tom Wappel: Can you tell me whether at the time when these people brought this matter up Clifford Olson was incarcerated in Saskatchewan?
Mr. Mosley: Quite frankly, I don't know. I know he has been incarcerated at Prince Albert, Saskatchewan, but I don't know if the dates coincide.
Mr. Tom Wappel: I'm sure you wouldn't be surprised if they did.
Mr. Mosley: I might add that it has been a concern to many on the criminal law side of the conference for a long time. In fact, the initial effort was chaired by the director of public prosecutions in New Brunswick, and I don't believe Mr. Olson has ever been incarcerated there.
Mr. Tom Wappel: One of the interesting things the paper comments on is:
- Unless uniform legislation containing reciprocal enforcement provisions is enacted by each
province, evasion of the law will be a relatively simple matter.
- Do you agree with that statement?
Mr. Tom Wappel: If it happened that upon release the criminal resided in one of the jurisdictions that did not adopt this legislation, then this legislation would not affect that criminal and they could profit from selling the stories of their crime. Is that not correct?
Mr. Mosley: If the legislation is not adopted, to use a hypothetical, in Prince Edward Island but adopted in Ontario, of course the major publishing houses are all located in Ontario and the major market in Canada is in Ontario. So the fact of residence in the province of Prince Edward Island may not affect the capacity of the authorities in Ontario to take action against the financial profits that are accrued in that province.
Mr. Tom Wappel: In that province; but there could could be no ability to go after financial gain that is accrued in Prince Edward Island, under your example.
Mr. Mosley: If you'll excuse me, I must say I'm not by any means an expert on the civil enforcement of judgments. I would suggest it may be at least theoretically possible for a judgment to be obtained in one province and then enforced under existing provisions in another province even if that province does not have the same cause of action under provincial legislation.
Mr. Tom. Wappel: But certainly it would be cumbersome, at best, if each and every province and territory did not enact the same uniform law.
Mr. Mosley: It would be preferable if they all did, yes.
Mr. Tom Wappel: And even if they all did that, it wouldn't stop the criminal from selling the story outside of Canada. Isn't that correct?
Mr. Mosley: That's correct.
Mr. Tom Wappel: And if the criminal then resided outside Canada or chose to leave the assets outside Canada and live in Canada, those assets, again subject to whatever reciprocal arrangements might be reached between countries, would also not be feasible. Isn't that correct?
Mr. Mosley: I believe so.
Mr. Tom Wappel: Much has been made about the Son of Sam law and how the original Son of Sam law was struck down, I believe the phraseology was, because it was inconsistent with the First Amendment to the American Constitution, concerning freedom of speech. Is it not true that the court said such a law could survive and would be constitutionally permissible provided the state demonstrates the limitation is necessary to serve a compelling state interest and is narrowly drawn to achieve that end?
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Mr. Mosley: Yes, and I think the State of New York did in fact subsequently adopt or draft a law to take into account the direction received from the Supreme Court.
Mr. Tom Wappel: So such laws are indeed constitutional provided they're properly drafted, following the Supreme Court's guidance in the Son of Sam case - or actually Simon and Schuster.
Mr. Mosley: Yes, we believe a constitutionally valid law can be drafted.
Mr. Tom Wappel: And is it also true that the Supreme Court of Canada, according to this paper, has cautioned against - and I again quote from the paper:
- a slavish adherence to...[American] precedents, principally because the American Constitution
does not contain a justificatory clause similar to section 1 of the Charter.
- You would agree with that, wouldn't you?
Mr. Tom Wappel: There's no question about that at all.
This paper you were talking about also says that, when discussing the Canadian aspect of constitutionality:
- A Canadian court would probably conclude that these goals were significant enough to operate
as a limitation upon clause 2(b) of the Charter
- - these goals being the goals that are discussed in order the prevent criminals from profiting
from their crimes.
Mr. Mosley: If the legislation met the proportionality test under section 1.
Mr. Tom Wappel: Right, and they also say:
- Provided the law is narrowly drawn to regulate only those works intended to exploit criminal
activity, especially heinous crimes such as ritualistic or serial killings, it should likely satisfy
the third and final criterion under the proportionality inquiry. In those circumstances, its
salutary effects would almost certainly outweigh any adverse impact it might have on that kind
of expression.
- That's what the paper says. Do you agree with that?
Mr. Tom Wappel: Yes.
Mr. Mosley: If he's quoting from it, Madam Chair, I don't -
Mr. Tom Wappel: I'm quoting from it. I only ask you if you agree with what the authors stated. Should I read it again?
Mr. Mosley: I haven't committed that paper to memory.
Mr. Tom Wappel: Fair enough, and I wouldn't expect you to, but you did mention it in your opening remarks.
Mr. Mosley: Yes, of course.
Mr. Tom Wappel: So I'm presuming you reviewed it before you came here.
Mr. Mosley: Yes.
Mr. Tom Wappel: Having done so - it being five or six pages long - that's why I'm asking you whether or not you agree that the statement I just quoted to you is accurate as far as you know, as a lawyer and an adviser in your capacity as deputy minister for policy.
The Chair: Just a minute. Would you like to see the document?
Mr. Mosley: No. I have it with me, if I could be referred -
Mr. Tom Wappel: It's on page 175, in appendix G.
Mr. Mosley: I'm actually working from the original paper rather than the proceedings.
Mr. Tom Wappel: Then it would be in point 5 in the paragraph immediately preceding the conclusions.
Mr. Mosley: Yes, I agree with that statement, and I would also point out the concluding sentence in that paragraph:
- If the regulation is too broad in its reach, it will in all likelihood fail the final step as well.
Mr. Mosley: I would agree, and I add that it's the objective of the Uniform Law Conference of Canada to draft legislation that will withstand the constitutional scrutiny and a division of powers challenge.
Mr. Tom Wappel: That is presumably our role here in Parliament, as well. We don't want to pass things that won't withstand judicial scrutiny.
Mr. Mosley: I wouldn't presume to comment on your role.
Some hon. members: Oh, oh!
Mr. Tom Wappel: Notwithstanding that we try, sometimes it doesn't work and the Supreme Court surprises everybody, but we still go ahead nonetheless. Right.
Mr. Mosley: Of course.
Mr. Tom Wappel: That's it. Thanks very much.
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The Chair: Perhaps I can just ask this question. I know that in legislation that is presented to the House by the minister he signs on his belief in its constitutionality. Does someone do that with private members' business, or do they just come here and make argument? How does that work?
Mr. Mosley: There is no requirement under the Department of Justice Act for that certification of process to apply to private members' business. It speaks of any public bill introduced by a minister of the Crown.
The Chair: Okay.
Thank you very much for your assistance today.