[Recorded by Electronic Apparatus]
Wednesday, September 18, 1996
.1544 
[English]
The Chair: Order.
Today we'll be dealing with Bill C-17, which is our omnibus legislation with respect to the Criminal Code.
From the Department of Justice we have Mr. Yvan Roy and Fred Bobiasz.
You know the drill.
.1545
[Translation]
Mr. Yvan Roy (Senior General Counsel, Department of Justice): Thank you, Madam Chairperson. My name is Yvan Roy and I am accompanied by my colleague Fred Bobiasz.
We are here to answer, to the best of our ability, the questions the members of this committee have on Bill C-17, which was tabled by the Minister of Justice on March 8.
[English]
By way of introduction and background, I would propose, Madam Chairperson, to spend perhaps two minutes on this and then let your colleagues ask questions.
The Chair: Sure.
Mr. Roy: By way of introduction, it's awfully difficult to tell you what the theme of this piece of legislation is, because there are so many small changes, and then there are some smaller changes that are being proposed by this legislation. Suffice it to say that what the minister is trying to do with this piece of legislation is to make the criminal justice system, and in particular criminal procedure, more efficient, so it will be possible for the courts to dedicate the time that is required for the more serious matters.
So many changes are being proposed that it would probably be ludicrous for me to try to outline them to you and your colleagues. As part of the material that was circulated at the time of tabling, and also during second reading debate, an outline of what this is all about was presented. If it is appropriate and you agree with this, Madam Chairperson, I would propose that we answer questions, after having reminded the members that the changes being proposed to a large extent have come from people who are working in the area of criminal law, be they judges, lawyers, or other people interested in criminal justice matters.
A large number of the proposals that are before you are coming from the Uniform Law Conference, which is a conference composed of not only Justice lawyers, not only government lawyers, but also private practitioners. Numerous proposals before you are actually coming from the private bar. We understand there is probably good support from most of them, but we will be more than interested in listening to the debates that will take place here, to make whatever adjustments may be deemed appropriate after the minister has made his decision.
The architect of this piece of legislation before you is first and foremost Mr. Bobiasz. I will try to be of assistance to Mr. Bobiasz as he will be trying to answer your questions.
I would propose to open the floor to questions, if that's appropriate and you agree with it, Madam Chairperson.
The Chair: All right. The Bloc, questions?
[Translation]
Mr. Bellehumeur (Berthier - Montcalm): Mr. Roy, we met previously when the anti-gang law was being studied, a law I felt was flawed insofar as money laundering was concerned, among other matters.
Although I am newly appointed as Justice spokesperson, I know that some provisions apply to money laundering and the proceeds of crime. I know that you met on several occasions with the members of the Canadian Association of Chiefs of Police and various other concerned stakeholders. Do the amendments you propose to the Criminal Code meet the requirements or concerns of those persons, who stated that Canada was the clearing house for money laundering, that it was easy to launder money here, and so on and so forth? Will the amendments proposed in Bill C-17 make it more difficult to launder money in Canada? Will they help police officers gather evidence? Do they provide for the imposition of additional obligations on banks? And finally, do they meet the requirements of those who are charged with administering the legislation?
.1550
Mr. Roy: Mr. Bellehumeur, the bill which is currently before the House and before this committee was tabled just before Christmas and was tabled yet again, for the reasons we are all familiar with, last March.
The Minister of Justice and the Solicitor General of Canada met with representatives of police forces last February 9 in order to hear their comments about the difficulties they encounter in their fight against organized crime. Following that meeting, the minister instructed his department to organize a forum on that topic. That forum was the object of some media publicity last week, when it was announced that it would be held Friday and Saturday of next week, here in Ottawa, and that various interested parties would participate.
I think I would be lying if I told you that the provisions of Bill C-17 will have an effect on topics of interest to you relating to money laundering. There are, however, a few provisions in the bill which will facilitate the fight against money laundering and organized crime.
With your permission, I will point those out to you. If you go to page 13 of the bill, you will see that subclause 28(1) proposes an amendment to section 462.31 of the Criminal Code in order to allow proceedings against any individual who knowingly participates in a money laundering operation.
The Supreme Court will be hearing a case that has been referred to it this fall. It concerns an individual who had dealings with a representative of the Drug Enforcement Administration in the United States. That individual thought he was dealing with someone who wanted to launder money he had acquired illegally. The Ontario Court of Appeal concluded that since the money that was to be laundered was not in effect illegally acquired, since it came from American authorities, section 462.31 did not apply. Thus, the police was prevented from implementing one of the aspects of its program to fight money laundering. You will note that clause 462.31 counters that difficulty by specifying that when the individual believes he is participating in a money laundering operation, that will be sufficient to constitute an indictable offence.
Another difficulty derives from decisions handed down in two cases by Alberta courts which made comments on police action involving the commission of offences by police officers, technically at least, officers who had ill-gotten goods in their possession. In doing this, to a certain extent, the police were receiving stolen goods. Again, allow me to emphasize that that is technically speaking only.
It would seem important that Parliament pronounce itself on this issue and be able to tell police officers that when they are acting in the course of their duties and attempting to catch someone who is engaging in money laundering or other types of offences, they should be able to act in character. For that reason, in future, when they receive property that has been illegally obtained, they will no longer be committing a technical offence. On page 13, you can see the amendment which creates a subparagraph to section 462.31.
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In the same way, clause 23 proposes an amendment to section 354 of the Criminal Code.
The intent is not to tell police forces that they can act as they please. Rather, Parliament must let them know that when they are doing their jobs, if they do something that would otherwise be considered an offence, they will be able to continue their investigation without having committed a technical offence.
The example of this type of situation that comes to mind, in which a judicial decision was made, is the ``Store Front'' operation in Montreal. The RCMP had taken part in a form of money laundering and was receiving hockey bags full of small bills, knowing full well that these small bills had certainly not been earned selling ice cream at the corner of Ste-Catherine and Peel streets.
Technically, it could have been said, and certain courts did say so, that the police officers were committing an offence under section 354. The minister is proposing, and hopes Parliament will ratify his proposal, that police officers be allowed to continue to take part in operations that allow them to directly attack organized crime by pretending to be an offender during the course of the investigation.
I could probably point to other provisions, but those two, at least...
Mr. Bellehumeur: Financial institutions are not under any obligation to notify police when someone turns up on their doorstep with $25,000 to deposit in small bills. I'm using the figure of $25,000, but the amounts involved are generally much larger.
Mr. Roy: At the present time, pressure is being brought to bear on financial institutions to urge them to report transactions that seem suspect to them to the authorities. But there is still no obligation to do so. That will be one of the main topics of discussion at next week's forum. For instance, law enforcement representatives have proposed that a threshold sum be set for border crossings; those attempting to cross with more than that sum in their possession would be turned back. If individuals persist in their attempts and are caught trying to cross with more than that sum in their possession, the money would be confiscated.
This is already in effect in the United States. This is another proposal which would allow for the creation - I will use the English expression because I think that it captures the idea very well - of a paper trail which would then make it possible to initiate investigations. These proposals are being considered seriously.
Mr. Bellehumeur: Crime and money laundering is much more complex than the case of the individual who arrives with his hockey bag. Because of computers and the possibility of transferring money in a few seconds from coast to coast, the scope of these provisions should be broadened and not limited to cases such as that of the individual who arrives with his hockey bag. Sometimes 3 million dollars are deposited in an account overnight and no one knows where it came from or how it got there. That obligation should be put on the books. It will be discussed at the forum.
Mr. Roy: Yes, I can confirm that.
Mr. Bellehumeur: I have no further questions.
The Chairperson: There's one minute left.
Mr. Langlois (Bellechasse): I would like to put my first question to Mr. Roy. On page 8, clause 16, one can read several provisions dealing with offences that have been created in the wake of technological developments such as credit cards, computers, and telecommunications theft.
In your opinion, would section 16 as it stands cover the case of a person who, without having a credit card physically in his or her possession, nevertheless has obtained the number of that credit card? If I have your credit card number and expiry date in my possession, I can carry out a transaction and probably purchase certain goods with the complicity or willful blindness of a retailer. That is the question that came to my mind as I read clause 16. You can probably provide us with a specific reply.
Mr. Roy: Yes, indeed, that is the basic intent behind that amendment. Those provisions were proposed by people in the industry who follow these matters very closely. We were asked to propose a specific provision aimed at the behaviour you have just described. We have good reason to think that the provisions of clause 16 will cover precisely the type of situation you have raised.
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Mr. Langlois: Perhaps I am broaching a matter of property and civil law, which falls squarely under provincial jurisdiction. In Canada, we own our credit cards. I will get my card out for you. There is a signature on the back of it.
Observe what happens when you make credit card purchases. How many people look at the signatures and compare them? The signature should at least be on the front of the card. It would be quite simple to put it there and then it would be easier to compare signatures without offending anyone.
I don't know if that sort of thing falls under the jurisdiction of Consumer Affairs or of the Bank Act, or whether it falls under provincial jurisdiction, but I have always been struck by that. In some countries, such as France, signatures appear on the front of the cards. That is also the case for health insurance cards in Quebec.
Ms Torsney (Burlington): In the United States as well.
Mr. Langlois: It might be one way of making issuing institutions such as banks, trust companies and caisses populaires more aware of this phenomenon. I spoke to several retailers who told me that they felt ill-at-ease turning the card over because they are afraid of offending the customer. It would be simpler to check if the signature were on the front of the card.
I will have further questions later on other topics.
[English]
The Chair: Mr. Ramsay.
Mr. Ramsay (Crowfoot): Do I get a full ten minutes today?
The Chair: You certainly do. You're going to get a set of ten Ramsay minutes.
Mr. Ramsay: Before I proceed, may I ask if the justice minister is going to appear before the committee on this bill?
The Chair: On this bill? If we ask him to, I'm sure he will. Would you like him to? Do you want me to go and get him now?
Mr. Ramsay: I will tell you at the end of the day.
We met with the Justice officials, as well as the minister, some time ago and expressed our concerns about this bill. Because I've got only ten minutes, I won't waste any time in telling you what I like about the bill. I'll tell you what concerns I have.
The Chair: Mr. Ramsay, if you'll be nice, we'll give you extra time.
Mr. Ramsay: All right. Listen.
What is happening here is that there is a redesignation of offences by the justice department, from indictable to dual procedure. I think this permits and encourages our judges to consider these offences as less serious and permissive of lesser punishment, to include mere financial penalties.
I would like to deal with them one by one.
Under subsection 279(2), which deals with the quite serious offence of unlawfully confining, imprisoning, or forcibly seizing another person, under the old penalty the maximum was a period of imprisonment not exceeding ten years. Under this bill the amendment allows for dual procedure, either indictment or summary conviction. Under summary conviction, the maximum is eighteen months or as little as a fine of $2,000, for a very serious offence. It reads ``without lawful authority, confines, imprisons or forcibly seizes another person''.
When he introduced the bill, the justice minister stated that this illustrates further progress on the government's safe homes and safe streets agenda, yet it's signalling a lessening of offences. So it's signalling that the department is willing to get softer on these types of crimes.
If we go to subsection 348(1), which is about break and enter with intent at a place other than a dwelling, the old sentence was fourteen years maximum by way of indictment. By the amendment under this bill, the penalty is reduced from fourteen years maximum to ten years if tried by indictment, and a new provision allows for trial by summary conviction but does not clarify it. So we don't know.
I suppose it would be the six-month maximum, would it, with a fine, as prescribed under the Criminal Code?
Mr. Fred Bobiasz (Counsel, Criminal Law Policy, Department of Justice): That's correct, sir.
.1605
Mr. Ramsay: Okay. Under subsection 349(1), for the entry into a dwelling house with intent to commit an indictable offence under the present act the maximum is ten years. Under this bill the new penalty would be ten years under indictment as a maximum penalty or triable under summary conviction. So again there is a reduction of the penalty.
In this particular clause, and it's quite surprising to me, or at least very interesting, we see that if we read the proposed subsection it says:
- 349.(1) Every person who, without lawful excuse, the proof of which lies on that person, enters
or is in a dwelling-house with intent to commit an indictable offence
Of course we get to proposed section 367, which is on forgery. Under the present penalty it's triable by indictment, with a maximum of fourteen years. Under the new bill it would be reduced to ten years by way of indictment, or again it can be heard by way of summary conviction.
When we get to proposed subsection 368(1), on uttering a forged document, the present act provides for a maximum penalty of fourteen years by way of indictment. The clause would reduce the maximum penalty by way of indictment to ten years and it can now be tried by summary trial.
So I have some real concern. If the minister is really signalling that he's getting tough on crime, when you lighten the maximum sentences and change the procedure from indictment to dual procedure it doesn't signal to me there's any intent here to get tough on crime.
Mr. Bobiasz: It's quite true for all the offences you mentioned that some very serious instances of those offences can occur. In those cases they would all be punishable by a maximum of up to ten years. What would occur for the serious instances of those offences is the Crown would elect to go by way of indictment rather than summary conviction. Indeed, for most of the occasions, at least for the unlawfully in a dwelling-house offence and the unlawful confinement offence, if it's a serious instance probably another more serious offence would have been committed, such as kidnapping or break and enter with intent to commit an indictable offence, in which case the Crown could and probably would simply proceed by indictment if it chooses to deal with it as a dual procedure offence, or it would use the alternative offence, i.e. break and enter in a dwelling-house itself or kidnapping as opposed to unlawful confinement.
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But with regard to all of the offences that have been selected for reclassification in this fashion, the actual sentencing data that's available that show the dispositions by the courts indicate that a significant, if not a substantial, proportion of the sentences handed out are well within the summary conviction range.
Indeed, now for many cases of break and enter in dwelling-houses the judge is applying existing sentencing principles. Sometimes they award sentences that don't even involve incarceration, and sometimes sentences that don't even involve fines, suspended sentences and the like.
So what is being done here is simply to provide for a mode of procedure that is consistent with the likely outcome on the assumption that a conviction would occur. With the Crown being in a position to assess the criminal record and antecedents of the accused person, it would be in a good position to make an estimate as to what sentence would be imposed should there be a conviction.
Mr. Ramsay: Yes, but my point is - and you make my point - that the justice department is reducing the maximum penalties. This has to be a signal to the courts that a more permissive attitude is being taken by the justice department in terms of the maximum sentences or the seriousness of those offences, regardless of what the courts are doing today. You're reducing some of these maximum sentences from fourteen years to ten years. What does that say to the courts?
To the people who feel that the courts are being too lenient now, through this act you're now signalling to the courts that what they're doing is quite all right. The act is to tell the courts what to do; the legislation is to tell the courts what to do. You are now reducing the maximum penalties, in some cases from fourteen to ten years and in other cases by way of summary conviction. That in itself will signal to the courts that the justice department of Canada is taking these offences less seriously than in the past.
Would you not agree?
Mr. Bobiasz: Quite frankly, sir, no. I think the message that would be evident - and we've heard this from judges with whom we've consulted.... They believe - and I think it's a sensible belief - that the sentences they are handing out now with regard to a range of offences are quite reasonable and quite appropriate.
Mr. Ramsay: Then why not leave the maximum there? Why not leave it at fourteen years rather than reduce it to ten?
Mr. Bobiasz: There's been a long-standing policy, and it's reflected in the offences in the Criminal Code, that the fourteen-year maximum is reserved for straight indictable offences. There are no dual-procedure offences with a fourteen-year maximum. That is number one.
Number two, looking at the offences in question, there are no periods of incarceration awarded for those offences - the uttering of a forged document, unlawful confinement - where the sentence is anywhere near fourteen years.
So what we're trying to do - and this is another objective - is to have the maximum correspond a bit more realistically to the sentences that are regularly imposed for those offences.
Mr. Ramsay: If I may just sum up before you cut me off, Madam Chair, there is no question that it is going to be a hard sell to my constituents that this is not a clear signal by the justice department that they support the courts becoming more lenient in these areas by simply reducing the maximum as well as the minimum sentences. From my understanding of the bill, that's exactly what this is doing. In some of these you're reducing the maximum and you're also allowing for a lower minimum, are you not? You're allowing for trial by way of summary conviction.
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Mr. Bobiasz: Certainly, but what we're allowing for is that with the predictability that can usually occur when an experienced Crown looks at a case the question is simply whether the range provided by summary conviction is appropriate for the sentence likely to be handed out.
Mr. Ramsay: So what you're suggesting to me is that there has been a change in attitude by the Attorneys General across the country about the severity of these kinds of offences.
Mr. Bobiasz: Not at all, sir. The Attorneys General across the country tell us that with offences, when a significant proportion of them are attracting no periods of incarceration - and data from Statistics Canada will bear that out - or where for a significant number of offences absolute and conditional discharges are being awarded, or fines, we should allow them to deal with those offences in the less onerous, less costly, less time-consuming indictable procedure.
The Chair: May I just add the point, as a former Crown, that it's very expensive to have a jury trial, or to have a trial in the higher court in itself. So by electing to proceed by summary procedure, if you can hurry things up and do it in provincial court, it's cheaper and faster. I'm sure that's part of what the consideration is, but it's certainly a consideration for a Crown in making the election: do I really want this to go before a jury or do I really want this to go to general division when it can be dealt with here?
Mr. Roy: Madam Chairperson, what is motivating the reclassification effort being made in this bill, to a large extent, is the very fact you're talking about, which is that in some jurisdictions the system is at the breaking point and there does not appear to be much point in having a preliminary inquiry, then the possibility of having a jury trial, for offences that will attract no jail time or very little jail time, when it is possible, according to the consultations we have had with people in the justice system, to have these cases tried on summary conviction and the penalties that will be dished out in those cases will remain the same.
Mr. Ramsay: So there is a shift to lesser penalties?
Mr. Roy: No.
The Chair: No.
Mr. Ramsay: Well, there has been, over the years. It signals a shift, or a recognition of that.
Mr. Roy: This is not what we have heard in speaking with the people who will be actually administering the system. What is being proposed, to be quite candid with you, is supported by the ten provinces and certainly by prosecutors at the federal level who are acting in the Northwest Territories and the Yukon. They say this is the way to go because the system is at the breaking point. Since administrations don't have more money to pour in, something has to get done.
In our view - and I may be wrong on this - this is a win-win situation here, in that the offences we're talking about, ones that are attracting sentences at the lower end of the range, will be dealt with more expeditiously, but without a reduction in the sentences being imposed. So from the perspective of the minister, and certainly the department, which is supporting the minister in this endeavour, this is a win-win situation.
Mr. Ramsay: Perhaps to the criminal justice industry it is, but it certainly is not to people who would look at this and read that for unlawful confining or imprisoning or forcible seizure of another person the maximum penalty has been reduced from fourteen to ten years.
The Chair: Your time is up, Mr. Ramsay.
Mr. Ramsay: Thank you, Madam Chair. Ten minutes.
The Chair: Thank you. That was 17 minutes and 59 seconds. But I was glad to do it for you, because of course you're my favourite.
Ms Torsney.
Ms Torsney: Don't let Frank magazine get hold of that.
May I just clarify the last issue. Outcomes right now, outcomes in the future after this legislation passes, are the same. It's just that the process is shorter.
Mr. Roy: That's what we anticipate is going to be the end result.
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Ms Torsney: I want to ask you about the issues on page 46; at least I think that's where they start. That's the issue of evidence being admitted from outside of Canada or witnesses being from outside of Canada. Does this put the process in place so that when we enact Bill C-27 on sex tourism we'll be able to convict more easily those who procure the services of child prostitutes outside of Canada?
Mr. Roy: I see that Mr. Bobiasz is eager to answer.
Mr. Bobiasz: I'm eager in a way, but I think the answer will disappoint in a sense.
You'll notice that what's underlined is the word ``admitted''. What's being done in those provisions where you see the word ``admitted'' is it's replacing two words, called ``read in''. It's a very technical amendment.
It was pointed out by Chief Justice Constance Glube in Nova Scotia that in the olden days to get previously taken evidence readmitted you literally had to read it in. It was on paper. Today most evidence from prior proceedings is recorded on audio tape or video tape, and she suggested - and it was a very sensible suggestion - that this literal reading in of the evidence is just obsolete and there should be more flexibility. So this was put in for that purpose.
Ms Torsney: Will we have to make further changes to this section when we deal with that issue of prosecutions of people who have been outside the country?
Mr. Roy: The law already provides for rogatory commissions. That has been used for a long time, and I anticipate that this is what will happen in the future. What that means is that defence counsel, the Crown, and the judge, or a person appointed by the court to act as the referee in this, are asked to go abroad, collect the evidence, and bring it back to this country. It's already provided for by law and has been used extensively over the years.
Ms Torsney: I noticed in the summary - in case anyone didn't read to the very last line - that there are some changes in relation to mental disorder. I glanced through and I tried to find it. I wonder if you could elaborate for me what issues relate to mental disorder. What are we changing?
Mr. Roy: I would take you back to pages 39 to 42 of the bill.
A number of proposed changes are because some mistakes have been made in the past in the drafting of the provision.
One that may be of interest to you, however, is the one that is now found in clause 86, which is an amendment to section 672.55. What you have under section 672.54 are the dispositions that can be made of particular cases. The way it is drafted, it is not clear that you would be able to release someone in the community and impose on that person some conditions, such as taking some medication or doing some things of that nature that would fall under the big umbrella called ``treatment'' - given section 672.55, which says that you cannot force someone to have a treatment.
What this would do is clarify that if you're releasing someone in the community you can impose some conditions, some of which may be that if you want to be released you will have to take your medication. That would clarify what we understand is already the practice in a number of jurisdictions.
So that's an important one that you have in there.
Another that may be of interest to you is the question of who will be paying for lawyers who are appointed in some cases where the individual who is being subjected to this regime does not have the means to pay for a lawyer. The law will clarify that point. There have been some court cases on this. It's not clear. The law will do that.
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Under clause 83 there may be another one of interest to you, the personal liability of the members of those boards that are tasked with reviewing these cases. Some protection will be afforded by law. If they make a mistake and they are acting in good faith and have used the requirements of their profession in order to come to that decision, these people will be protected. They probably are already, but again, this is in the nature of clarifying what may already be there.
So that's basically what we are talking about here. Mr. Bobiasz would perhaps like to add a couple of things to this.
Mr. Bobiasz: Just one, because I think it relates a little to what was behind your first question, about taking evidence. On page 40, in clause 84, we're making a change that would permit the review boards to carry out their functions using a video link between where they ordinarily sit and where people whose cases are being reviewed might be. At the moment it's a cautious approach. It requires the consent of everybody concerned. It's part of a number of changes we're making in this bill and we've made in earlier bills to encourage the greater use of technology in pre-trial proceedings and in the hearing context to take advantage of technology, on the one hand, and on the other hand to overcome some of the barriers we have in this country, having to do with distance and time.
Ultimately, if provisions like this work in the domestic context, I'm confident we'll be able to hear evidence from abroad using the same approaches. But I think the first step is to be comfortable both with the technology and with the legal regime domestically.
Ms Torsney: Technology also relates to the issues on pages 21, 22, and 23. What was going on before and what do these changes mean? It's all about telewarranting and computer systems.
Mr. Bobiasz: In 1985 a very timid and cautious experiment was made with the use of technology in obtaining warrants. The basic warrant is provided for in the Criminal Code under section 487. In 1985 there was a massive criminal law amendments bill. It's probably three times the size of this one. One of the things it did, because of the charter, was it eliminated many of the warrantless powers police had in certain search and seizure contexts, one of the more notorious ones being the writs of assistance, where essentially searches could be carried out without pre-judicial authorization. To compensate somewhat for that, the code was amended to permit warrants to be obtained by telephone. They're commonly referred to as ``telewarrants''.
At the time the scheme as it was envisaged was that on either end of the telephone people would be writing the same thing down, the police on one end and justices at the other end, and if technology permitted they would actually record the communication. That didn't work out all that well. However, a few years ago it was noticed that now with computer communications and facsimiles it might be a little more technically feasible to allow for this indirect communication between authorizing judge and police officers.
Two years ago, in Bill C-42, on the basic telewarrant scheme, an amendment was made to subsection 47(1) to allow for warrants to be obtained by fax, not just by telephone. It's been in force for only a year and a half, but it's been relatively well received.
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What we're doing now in these changes is making the telewarrant procedure available to some of the more specific kinds of warrants that are available, not just the basic search warrant but the warrant you adopted a year ago on DNA. It was felt that in certain circumstances it might be useful to be able to get that warrant either by telephone or by facsimile. So we've provided for that here, and also for three or four other special warrants. Rather than to repeat the telewarrant scheme, which has about four and a half pages of relatively detailed provisions, we just adopted...by way of a proposed subsection in each warrant thing, saying to take the detailed scheme for telewarrants and apply it to this situation.
Ms Torsney: What's the one thing you're most excited about in this bill?
Mr. Bobiasz: Getting it passed and into place.
Some hon. members: Oh, oh!
[Translation]
The Chairperson: Mr. Bellehumeur, you have five minutes.
Mr. Bellehumeur: I will be very brief. I have a request for Mr. Roy. I hope that you will be able to answer me because everyone would benefit.
I am averse to omnibus bills where everything gets jumbled together and it is difficult to find one's way... Would it be possible to put the provisions of Bill C-17 in one column and in another next to it the provisions of the current Act that those clauses would be replacing or amending, in both official languages?
In section 2, one reads:
- 2. Subsections 4(6) and (7) of the Criminal Code are replaced by the following:
- and then the provisions concerned are quoted. It's easy; one has only to consult the Criminal
Code. If you only have 25 articles, that isn't too difficult, but in this case, it is somewhat more
complex.
3. (1) The portion of subsection 145(5) of the Act before paragraph (a) is replaced by the following:
``of the Act''; does that mean the Criminal Code?
Mr. Roy: Yes.
Mr. Bellehumeur: That's not very clear. In the preamble, it says that other Acts will be amended by this bill. This becomes somewhat confusing.
Take clause 107, which refers to section 736(1) of the same Act. Does that also refer to the Criminal Code?
Mr. Roy: Always, until the bill mentions the other Acts that are to be amended.
Mr. Bellehumeur: So, in clause 127, the bill refers to the Foreign Extraterritorial Measures Act.
Mr. Roy: Correct.
Mr. Bellehumeur: Would what I asked you for be a great deal of work to prepare? Could it be done using a computer?
Mr. Roy: It could be a considerable amount of work, unless I have misunderstood you,Mr. Bellehumeur. If you are asking us whether we can provide an explanation for each one of those provisions, that would be a big job. Perhaps I misunderstood you.
Mr. Bellehumeur: No, but such things have already been done in the past. Among other examples, I sat on the committee that studied the bill on lobbyists, which was a brand new Act, and we followed a similar process; the bill was submitted to a committee before being tabled for second reading. We were provided with a large binder containing explanations for each amendment.
But that is not what I asked you to provide. I did not go that far, but if it were possible... Take clause 2 of Bill C-17. What is in French would not be affected, but in English, for the part that I want in French, we would have the former sections 4(6) and (7) of the Criminal Code listed, in order to be able to see immediately what has been amended, added or deleted. Of course, nothing in the old law corresponds to what is being added so there would be nothing next to those provisions.
Mr. Roy: I understand you much better.
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Mr. Bellehumeur: I'm not sure if the Liberals understood everything when they read the bill. I'm not absolutely certain that everything is clear in their minds. That may be the case for the parliamentary secretary, but what about the others? I was observing at them earlier and they seemed to be having trouble following. I think what I'm proposing would benefit everyone. This is quite a substantial bill and I don't feel...
[English]
Mr. Kirkby (Prince Albert - Churchill River): You must have us confused with Jack. Just kidding.
[Translation]
Mr. Bellehumeur: It's a joke. I could do it, but it would add to all of the work we already have. I could take the time to examine the Criminal Code section by section, but when we get to clause-by-clause study here, in committee, it seems to me that it would be useful to us to see the existing texts and to know whether the amendments will be adding anything to the current act. I think this would enlighten everyone, Reformers as well as Liberals.
Mr. Roy: Would you be satisfied if I answered that I will discuss this with our legal specialists? In the past, this is how things were done. You had the new text on the left-hand side and the existing text on the right-hand side.
Mr. Bellehumeur: Why was that method changed?
Mr. Roy: I imagine it was because of costs. Be that as it may...
Mr. Bellehumeur: At some point, I'm going to have to vote on Bill C-17 and I can see myself in caucus explaining why we should vote for or against C-17. If I have nothing to give them, the debate will go on past Christmas. Not everyone votes by blindly following recommendations, and there are intelligent people in both the Liberal party and the Bloc Québécois. People want to understand what they are voting on.
I think we should go back to the old method. Does the chairperson support me?
[English]
The Chair: Certainly.
Are you proposing that you will see if it can be arranged for us?
Mr. Roy: I will make the following commitment, Madam Chairperson. I'm going to check with our colleagues to see if that can be done fast. I understand that you're going to have hearings perhaps as soon as some time in early October. We're going to do our best to provide you with that kind of information.
The Chair: Thanks.
[Translation]
Mr. Bellehumeur: With the document I've requested, during the hearings, it would be very easy to say: ``Here is what exists currently and here is the proposed amendment''. ``Are you in favour of that amendment? Do you have something to say?'' This would help our witnesses a great deal. You tell me that this is how things were done in the past. So I'm not proposing a radical change. This would help members as much as witnesses.
I would like to insist that this be done. I am sure that a person of your potential, Mr. Roy, will be able to convince his colleagues.
Mr. Roy: I will endeavour to be as persuasive as humanly possible.
[English]
The Chair: Well, we have Mr. Roy's undertaking.
On the government side, are there questions, Mr. Kirkby?
Mr. Kirkby: You indicated that all the provinces agree with the movement that we are making with respect to this legislation; that is, putting a lot of these offences that used to be simply indictable ones into what are now dual offences. Is it correct that the provinces are in complete agreement with that approach?
Mr. Roy: That is exactly correct. Actually, this whole movement has been started by the provinces themselves. Some of them are obviously more vocal than others, but I can tell you that Ontario and Alberta, in particular, are very interested in the kinds of changes that are being proposed here.
The Chair: Was there anything else, Mr. Kirkby?
Mr. Kirkby: No. I understand everything else.
The Chair: Mr. Ramsay.
Mr. Ramsay: I would like to finish on the first point I raised with you. When the justice minister increased the penalty for murder under the YOA to ten years, it reflected a more serious concern about that crime. When he instituted a four-year minimum term for the use of a firearm in the commission of an offence under Bill C-68, again, the minister signalled a more serious concern about such an offence. But when he reduces - and I think it just makes sense - the maximum term from fourteen years to ten years and allows for summary conviction for what amounts to kidnapping, does that not signal a less serious concern about that offence? Is that a fair question?
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The Chair: Mr. Ramsay, you're putting these fine gentlemen on the spot here. These are political policy considerations.
Mr. Ramsay: I'm supposed to do that.
The Chair: I know, but they're public servants and -
Mr. Ramsay: Is that not a fair question?
The Chair: I think those are the kinds of questions that you might want to put to the minister. I don't think it's fair to ask them to deal with the politics of it. On the other hand, if they want to answer the question, I'm not going to stop them.
Mr. Ramsay: Perhaps I could reword it. There is much about this bill that I can support and our caucus can support, because there are lots of minor changes in it that I think will make police work and court procedure a lot easier and more practical. My concern was the impression that the reduction of the maximum offences and the movement to the dual procedure, although I understand the practicality as explained by the officials here, is in fact signalling that there is less of a concern with regard to the commission of these offences than is reflected in the present sections of the Criminal Code. That is my concern.
Now, if it's a little bit awkward, and I think it is, and that's why I asked if the minister was coming -
The Chair: We can ask the minister to come.
So what you're saying is that Charles Harnick of Ontario and Brian Evans of Alberta are less concerned about these offences.
Mr. Ramsay: I don't know if they are or not.
The Chair: Anyway, if you wish to take on the question, go ahead, but you don't have to.
Mr. Ramsay: I understand that it should really be directed to the minister. If they wish to respond they can.
There's one other point we covered when we met with you. I wonder if you would consider changing ``would'' to ``could'' under proposed subsection 342(3). It adds an offence of unauthorized use of credit card data, and we have a question as to whether or not the information must be usable.
The section states:
- would enable a person to use a credit card or to obtain the services that are provided
- This wording would appear to require evidence that the use of the credit card data, whether or
not authentic, would be successful, and we fear that this might prove difficult to prove if it has
not been tried or if it was tried and noticeable through particularly astute security.
Mr. Bobiasz: We did give careful consideration to the observation you made and we're convinced that -
Mr. Ramsay: That there's no problem with that?
Mr. Bobiasz: - there's no problem, in the sense that the genuine data or the false data would, if it is used and would lead to the commission of the offence, certainly be covered. If it wouldn't be capable of leading to the offence, the attempt to do it would establish criminal liability, just applying ordinary principles of attempt.
Mr. Ramsay: Under that section?
Mr. Bobiasz: Under this section, plus the rules related to attempting offences.
Mr. Ramsay: So you're satisfied -
Mr. Bobiasz: We're satisfied that it would not cause any great difficulties with the police community. This is on page 8.
Mr. Ramsay: That's all I have, Madam Chair.
The Chair: Thank you, Mr. Ramsay.
Are there questions on the government side? Ms Minna? No? I find that hard to believe.
Mr. Langlois.
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[Translation]
Mr. Langlois: Mr. Roy, when we have the document which my colleague, Mr. Bellehumeur, requested from you earlier, we may have to ask you to return, which you do graciously. I took a few brief notes and I will ask you for explanations at this point, since I don't even have my Code to make comparisons and look things up.
With your permission, I will refer you to page 47 of the bill, clause 105(2). It seems to me that this provision strengthens the possibility of filing evidence gathered during the preliminary investigation at the trial.
Generally, at the trial stage, it is impossible to confront the witness with statements made at the preliminary investigation. What does this new subsection 715(2) add to what is possible under the existing Act?
Mr. Roy: Mr. Langlois, the change that is introduced here is exactly the same as the oneMr. Bobiasz referred to in response to Ms Torsney's question.
In the existing Criminal Code, it is said that the evidence will be read. In order to avoid having to read everything which may have been committed to audiotape, as is most often the case, the Act will be more modern in that it will simply say that that evidence will be admitted.
In courts, the expression ``will be tabled with the court'' is generally used. But nothing is tabled. In French, we prefer to say that that evidence will be ``admitted'', which will replace the expression used in the current text, which is ``will be read''. It is neither read nor tabled; it is admitted. That is the reason for the change. It is purely technical.
Mr. Langlois: I've been reading the bill the way I read the newspaper, especially Le Journal de Montréal, by beginning at the end, with the sports section.
On page 45, in clause 98, it says that where a new trial ordered by the court of appeal is to be held before a court composed of a judge and jury, the accused may ``elect'' to have the trial heard by a provincial court judge. In Quebec, that would be the Court of Quebec, the court which has criminal jurisdiction, unless the person has been charged under a provision which necessitates that the trial be held before a judge and a jury, of course.
Do you eliminate the opposite possibility? If a person's trial was heard by a judge without a jury and if a new trial is ordered by an appeal court, may the person ``elect'' to ask for a trial before a judge and a jury, when that is possible?
Mr. Roy: This is an amendment that is consequential to a resolution adopted at the conference on the harmonization of laws in 1991. The intent is that that election be possible after a trial has been held before a jury, to go on to a lesser level of difficulty; this amendment would not allow the opposite to take place.
Mr. Langlois: Thank you. I have not finished. I'll continue reading as though I were reading my newspaper. On page 43, in subsection 93(2), a hybrid procedure is permitted. The Crown is allowed to directly refer to the appeal court a decision handed down in respect of a summary conviction. Otherwise, the appeal in such a case would have been heard by the superior provincial court with criminal jurisdiction.
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Does that not eliminate the right of the accused or of the Crown to ask for a new trial where a new trial is possible? There are still several cases where that is possible. I think that this hybrid procedure should be looked at more carefully, but these are the thoughts that first came to my mind: the appeal court uses a joint record; except on very rare occasions, no witnesses are heard; however, in the case of an indictable offence, or of a summary conviction, a new trial is still possible in several cases, and proceedings can be started up again from the beginning, as though a trial had never been held.
What would be the status of an appeal court which would decide that it would allow an appeal as though it were dealing with an ``indictable'' offence? Forgive my use of that expression, but Judge Lacroix used to teach it at the law faculty.
Mr. Roy: You are a demanding examiner because you are really making me think about different aspects of various issues. I think that the intent behind this provision is to allow a single appeal to be filed with the appeal court when there are two different counts, one by summary conviction and one by indictment.
That allows both of those to be heard together. Rather than forcing you to go to the superior court for one and then to the appeal court, if the appeal court agrees, you are allowed to go directly to the appeal court for both charges. But you can't change your mind before the appeal court and state that you will only appeal the summary conviction offence and that nothing will be done about the indictable offence. What is important is the ``indictable'' offence, as you said.
The procedure allows you to save time as well as taxpayers' money, since you would otherwise have to appeal first of all to the superior court and then to the next level.
Mr. Bobiasz: It should be mentioned that exercising this right is optional. The accused could choose to ask the appeal court to group both charges and hear them together, or he could ask to go before a superior court judge after filing an appeal for the summary conviction offence. We are trying to provide as many options as possible.
Mr. Langlois: I understand. I would nevertheless like to ask one more question on this topic. Clause 93(2) of the bill gives the Attorney General or his substitute the right to go before the appeal court. On first reading, it seems to me that one of the options will disappear, and an in-depth study of the bill will probably also allow me to see me other things. Suppose I was unsuccessful before the Court of the Sessions of the Peace or a trial court with criminal jurisdiction. I didn't present my evidence well and my client was found guilty, if I was for the defense, or vice-versa, but the Crown will not invoke the section if it has been unsuccessful. I might very well decide to appeal to a superior court and begin everything all over again with a de novo trial.
If the Crown's request for leave to appeal is allowed by the appeal court, well, I have just lost that. I am blocked with my file at the trial court level. I have made my bed and will have to lie in it. I might find it rather uncomfortable.
I simply wanted to raise this matter. It seems to me that one option is being removed.
Mr. Roy: The trouble with your hypothesis is that I don't see why the Crown would want to appeal a conviction. I think that is how things are presented in 676. The Crown would be filing the appeal, if I'm not mistaken?
Mr. Langlois: No, but they might want to appeal an acquittal on legal grounds. They might even file an appeal in law and in fact, because under a Part XXVII, the Crown may appeal for reasons of law or of fact. It is not limited to matters of law.
I'm asking you to think about this. This is a first reading, a cursory reading, and I'm asking you to reflect on this.
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With Madam Chairperson's permission, I would like to go back to something. On page 38, proposed section 657.2 reads as follows:
657.2 (1) Where an accused is charged with possession of any property obtained by the commission of an offence, evidence of the conviction or discharge of another person of theft of the property is admissible against the accused,
And this is where it becomes interesting:
- and in the absence of evidence to the contrary is proof that the property was stolen.
So, bingo! You have just given the Crown its actus reus without the Crown having had to prove anything. I find that the situation is being made more cumbersome. That is my interpretation of the text on first reading. Another interpretation may be possible.
Mr. Roy: The best person to provide you with an explanation of that clause is my colleagueMr. Bobiasz, who, when he used to teach at the University of Ottawa, used some of the decisions he bases himself on here to set out an important legal theory.
Mr. Bobiasz: This change was made following a recommendation put forward by a commission which had studied possible revisions to the Evidence Act a few years earlier. The intention was to add the Hollington and Hewthorn rule to the Code. If I remember correctly, in that case, proceedings had been brought against someone for possession. It was necessary to establish that a theft had been committed. It was necessary to reintroduce all of the evidence against another person who was not before the court.
This amendment aims to eliminate that kind of obligation and to allow from the beginning to establish that the object involved in the offence was a stolen object. The fact that an individual had been found guilty of theft could be allowed as evidence.
Mr. Langlois: I agree with you entirely, and I also agree about the Hollington and Hewthorn judgment. But the text even refers to discharge, and thus to acquittal of the accused. It reads as follows:
657.2 (1) ...evidence of the conviction or discharge...
I don't foresee any problems involving discharge. When a judgment is handed down by an authority, it is obvious that there is no need to reintroduce all of the evidence. That is all for the best and I think that this is a desirable improvement. But in the case of an acquittal, if the actus reus is deemed to have been proved and if there is a reverse onus...
Mr. Bobiasz: You are talking about discharge, not acquittal. This refers to absolute or conditional discharge in a situation where a person is indicted. In some cases, the judge may discharge the case rather than convict the individual.
Mr. Langlois: You mean hand down an indictment with an absolute discharge?
Mr. Bobiasz: That is correct.
Mr. Langlois: I think we are beginning to understand each other. Would you allow me one last question, Madam Chairperson?
[English]
The Chair: It's the Canadian way.
[Translation]
Mr. Langlois: I will make some general observations since I cannot reread my own handwriting with the number of the clause. This is one of the worst problems, as my colleague was saying.
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I remember the question I was wondering about. Let's take the case of a person who has a warrant to go and search your file. I won't use you as an example as what I am about to refer to is not very pleasant and I wouldn't dare attribute such things to you. So, let's suppose that some person has a computerized file and has obtained a warrant to search through computer files and software.
If I earned my living from the proceeds of crime and ran a prostitution ring and drug trafficking operations, I could computerize everything to make activities much more productive.
An honourable member: You could put it on Internet.
Mr. Langlois: I could introduce a bug or some kind of device that would be activated as soon as someone tried to turn on the computer; that protective device would trigger a defensive system that would destroy all of the information. Do you think I could then be tried for obstructing justice, if I had destroyed evidence in this way? Perhaps we could include that sort of eventuality by amending the Act?
Mr. Roy: If I were the lawyer involved in the case, I would certainly be tempted to lay charges. If evidence were destroyed in that manner as someone was attempting to execute a warrant, that would certainly be an obstruction of justice, in my opinion.
Mr. Langlois: It would be a passive form of obstruction because of the right to not incriminate oneself. I might very well acknowledge that you are a police officer, sit down in my armchair and tell you that I will let you conduct your investigation. You turn on the computer and everything begins to erase itself.
Mr. Roy: Yes, but the fact that a search warrant has been issued presupposes that it will be executed. If you destroy the evidence that needs to be collected... I will use a comparison, although it is surely inadequate. I remember that during the Watergate affairs, President Nixon was asked why he had not destroyed the tapes. He had been given the following legal opinion: if you destroy the tapes before a subpoena is issued, you will probably not be obstructing justice; there would have been a problem once a subpoena had been issued.
Without giving you a final legal opinion, which we don't like to do without careful consideration, I would at least be tempted to consider this closely.
Mr. Langlois: My colleague was saying that the Boyle approach would apply here insofar as the destruction of documents is concerned.
There is another stage in the preliminary investigation. You were probably with the department when the preliminary investigation was modified. Previously, the justice of the peace presiding at the preliminary investigation could not send the accused to trial for any other charge than the one that had been brought. Now, the justice of the peace may send the accused to trial for the charge that was brought or for any other charge that is revealed in evidence. Will Bill C-17 broaden the powers of justices of the peace or judges presiding at preliminary inquiries even more?
Mr. Roy: I think that that is not the case. I don't see anything to suggest that.
Mr. Langlois: I thank you very much for your questions and replies and I hope to see you again.
[English]
The Chair: Thank you.
[Translation]
Mr. Langlois: I hope that we will see each other again when the text is consolidated. I think that that would be worth doing for a bill such as this one.
[English]
The Chair: Thank you for coming, gentlemen. We appreciate it. I'm sure we'll see you again.
Mr. Roy: With pleasure.
The Chair: This meeting stands adjourned.