[Recorded by Electronic Apparatus]
Wednesday, December 4, 1996
.1543 
[English]
The Chair: We're back. We're on clause-by-clause consideration of Bill C-27.
With us we have Yvan Roy, senior general counsel, criminal law; Carol Morency, counsel, family and youth policy; and Lucie Angers, counsel, criminal law.
As a point of information - okay, Mr. Bellehumeur, go ahead.
On clause 1
[Translation]
Mr. Bellehumeur (Berthier - Montcalm): We were talking about amendment BQ-2. After discussing this with my party colleagues, I ask that we vote on this amendment. It will be defeated if that's what the government members want.
As for the point I raised concerning court marshals, we will eventually consider tabling a private member's bill to address this situation.
If you wish to put the question on amendment BQ-2, the members of the Official Opposition are ready for the vote.
[English]
The Chair: I was just going to explain to you that we can't do it under the Criminal Code. What you wanted to accomplish would require an amendment to the Defence Act. As well, there are certain crimes, including upper-end crimes, that would be tried by a civilian court in any event.
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Do you want a voice vote on amendment BQ-2?
Mrs. Gagnon (Québec): Oui.
The Chair: Mr. Bellehumeur, do you move BQ-2? Madame Gagnon is not signed in.
[Translation]
Mr. Bellehumeur: I move the amendment.
[English]
The Chair: We will have a recorded vote, then, on amendment BQ-2.
Amendment negatived [See Minutes of Proceedings]
Clause 1 as amended agreed to
On clause 2
The Chair: BQ-3 is a proposed amendment to clause 2. Who wants to speak to that?
Mr. Bellehumeur.
[Translation]
Mr. Bellehumeur: Yes, I do have something to say about it and I would hope to hear fromMr. Roy on this subject as well.
Many witnesses expressed surprise at the mention of a minimum term of imprisonment of five years and of a maximum term of 14 years, considering that the government had passed a whole series of Criminal Code provisions, sections 728 and so on. We were told to place our trust in the courts to hand down sentences that fit the crime.
The biggest criticism or rather biggest fear expressed by the witnesses concerned this minimum term of imprisonment of five years. They want the reference to the minimum term deleted, and not because they feel the crime in unimportant. On the contrary, they fear that if specific mention is made in the legislation of a minimum term of five year and of a maximum term of fourteen years, then this will either open the door to plea bargaining or it will lead to judges, in dealing with relatively minor offences, finding defendants not guilty on a technicality and acquitting them, instead of sentencing them to a term of imprisonment of five years, the minimum sentence in the case of similar offences.
Therefore, by doing away with the minimum period and by leaving the maximum of fourteen years in place, we would be demonstrating that the offence is nonetheless serious and we would be giving the court the opportunity to hand down an appropriate sentence. We are merely invoking existing provisions in the Criminal Code, namely section 718 and so on. All the amendment does is to delete the reference to a minimum term of imprisonment of five years. Therefore, if the amendment were adopted, the provision would read: "Every person who lives wholly or in part on...is liable to imprisonment for a term not exceeding fourteen years."
Mr. Yvan Roy (Senior General Counsel, Criminal Law Policy Section, Department of Justice): In tabling what would become subsection 212(2.1) of the Criminal Code, the Minister was clearly concerned about protecting children. As you can see, the offence as described contains a number of objective and subjective elements. Not only are we talking about the exploitation of children by pimps, but in addition, this exploitation must be for the purposes of profit. That's the first condition. Secondly, violence must be a factor in maintaining the child in a state of dependence on his pimp.
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Based on his review of cases involving this type of offence, the Minister is of the opinion that Parliament should condemn in the strongest way possible this type of offence.
Minister Rock recently outlined in no uncertain terms the need for a minimum term of imprisonment of five years. Exploiting a child for the purposes of profit is a serious offence, as is enticing a child to out acts of prostitution and by extension, using violence or intimidation in relation to that child to maintain a state of dependence. The Minister said this: "If an offence like this does not warrant a five-year prison term, then what offence does? He wants to send out a clear message that when people behave in this manner, it is inappropriate for them to be handed a relatively light sentence. A five-year prison term is a relatively harsh sentence, of course, but it fits the crime as described in the proposed legislation.
We were also talking about other provisions and about the deterrent and educational effects they can have. Those aspects are part of the purpose of paragraph 212(2.1). The minister submits all of this to Parliament, hoping that Parliament will be willing to give this extremely clear signal with him about the seriousness of what is at stake.
You are asking me if there isn't a risk of plea bargaining. I am forced to acknowledge with you that for any serious offence in the Criminal Code it is possible to plea bargain in order to be charged with a less serious offence. But generally, the fact that this plea bargaining takes place will not prevent an appropriate sanction from being handed down for the crime. I think that the Crown attorneys who work in this area, at least those I have met, are extremely sensitive to that phenomenon and will want to use the provision when necessary.
For that reason, I think it is appropriate that the Minister of Justice go forward with it. I don't have to agree with the Minister of Justice; it is up to him to act. I hope that Parliament will support this measure because it is very much in keeping with the crime as described. The seriousness of the offence and the penalty than can be imposed are proportionate.
Ms Gagnon: We have heard witnesses who felt that in this specific case, the minimal penalty should not be set at five years for the reasons Mr. Bellehumeur raised. I would like to remind you that we are presenting this amendment at the suggestion of the Barreau du Québec, the Canadian Bar Association, the African-Canadian Legal Clinic, the Ministry for Children and Families of B.C., and the Prostitution, Education, Empowerment and Resource Society. Further, many people with expertise in this area came to testify and told us that they disagreed with your way of handling this point.
Mr. Roy: I don't know all of the groups you referred to intimately, even though several of them are familiar to me. Generally, those groups are opposed in principle to any minimal sentence. I don't think you will find any ministers of Justice telling you that it would be desirable to have minimal sentences throughout the Criminal Code. In fact, the minister introduced Bill C-41 which was passed by this Parliament. In our legal system, we must recognize that we must leave a great deal of discretion to the courts.
However, in the face of behaviour as horrendous as is described in paragraph 212(2.1), the minister believes that Parliament must give a signal that this is the type of offence that merits a very serious and severe penalty, and in this case it would be a minimum five-year prison term. When we look at the essential elements of the offence, such a sentence does not seem like a bad idea. I submit that it is quite appropriate in the circumstances.
[English]
The Chair: Thank you.
Mr. Ramsay.
Mr. Ramsay (Crowfoot): The witness from the Canadian Bar Association, Mr. Pinx, when he was testifying of course spoke out against the minimum sentence of five years in proposed paragraph 212(2.1)(b). He pointed out that it may be unconstitutional, based upon its being cruel and unusual punishment.
I know the minister has signed a certificate indicating that the bill is constitutional. Do you have any concerns that he may be right? He pointed out that the minimum four years under Bill C-68 has already been challenged on that basis.
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Mr. Roy: I would never openly contradict a friend of mine such as Mr. Pinx. We've had discussions in the past, and I'm sure we'll continue to have discussions. When he was talking about the possible unconstitutionality of such a provision, I think he was referring to case law that starts with the decision of the Supreme Court of Canada in the case of Smith.
This was a case that ruled as unconstitutional the minimum of seven years you had - and still have, actually - in the Narcotic Control Act for importation of narcotics. The Supreme Court of Canada said the spectrum of conduct covered by this provision...
In the case of the Narcotic Control Act we are talking about importing narcotics, from one cigarette of marijuana to a tonne of heroin. The Supreme Court said when you look at the spectrum of possibilities here, clearly in a number of them it would be outrageous if these people were sent to prison for a minimum of seven years. For instance, to use the example of Windsor once again, crossing from Detroit to Windsor with a cigarette of marijuana is importing narcotics.
The Chair: That would never happen in Windsor.
Mr. Roy: According to the letter of the law, that person would go to a penitentiary for a minimum of seven years. The Supreme Court said that cannot be right.
What you have here in proposed subsection 212(2.1) is conduct that is narrowed significantly to cover the most serious crimes you can have in terms of pimping. For example, you're a pimp dealing with young children for profit, and you're threatening to use, or are using, violence against them to keep them under your control. The minister thinks in those circumstances the five-year minimum will not be ruled to be unconstitutional. You're talking about the offences that are the most serious in that spectrum of possibilities.
Mr. Ramsay: Inasmuch as we have heard testimony that sex with children is in fact violence against children, when a pimp who brings a child into prostitution without that overt act of violence, would that not include an act of violence in that an act of sexual intercourse with a child, induced by the pimp, is an act of violence?
Mr. Roy: Mr. Ramsay, I do not think the wording you have here would include the kind of behaviour you're talking about. It has to be violence that is imposed on the child for the purpose of keeping that person under the submission of the pimp - not the simple fact of bringing that person to be sexually assaulted, given that this young person is a young person and is having sexual intercourse with someone for money.
When you look at the wording, it says:
- uses, threatens to use or attempts to use violence, intimidation or coercion in relation to the
person under that age
Mr. Ramsay: Let me then ask you, if proposed paragraph 212(2.1)(b) were to be removed and the rest remained, would you then consider Mr. Pinx's concern about a five-year minimum? Would that then be unconstitutional on the basis of cruel and unusual punishment?
Mr. Roy: I myself would have concerns. You need to have both elements, the way this is drafted. The minister was willing to say this is constitutional on the basis of both elements being there - commerciality and violence. If you don't have the violence, it seems to me that the risk that this provision would be unconstitutional is raised probably significantly.
Would that be ruled to be unconstitutional? It's awfully difficult to answer a question like that. You have to go to the courts with it, whether that be the Court of Appeal or even the Supreme Court of Canada, to get an answer to this. In my humble estimation, I think the risk of this being unconstitutional would be significantly heightened.
Mr. Ramsay: That's all. Thank you.
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The Chair: Thank you.
Amendment negatived [See Minutes of Proceedings]
The Chair: Shall clause 2 carry?
Some hon. members: Agreed.
The Chair: Shall clauses 3 and 4 carry?
Some hon. members: Agreed.
Mr. Ramsay: I have a question, Madam Chairman, on clause 4.
The Chair: Shall clause 3 carry on division?
Some hon. members: Agreed.
The Chair: Just let me say that we have a half-hour bell here, and I'm proposing to rise at 4:10. If we haven't finished, we'll come back.
You have a question on clause 4, Mr. Ramsay?
Mr. Ramsay: Yes. It arises from the comments made by the crown prosecutor who appeared before us, Mr. Dan Moon from Vancouver. It has reference to proposed subsection 212(4).
He was of the opinion that the word ``communication'' should be there. Right now it reads:
- Every person who, in any place, obtains or attempts to obtain, for consideration, the sexual
services of a person
The Chair: I think what Mr. Moon was saying was he would rather prosecute under a communication charge - communicating for the purpose - than under this kind of charge.
Mr. Roy: Let me try to tell you the thinking behind this.
During consultations that have taken place over the last few months, we have been told by police forces in particular that it is just about impossible to enforce the provision we're talking about here, which is proposed subsection 212(4), because it's impossible for the police to send a decoy.
The offence, the way it is framed right now, requires that the person who is approached be under the age of 18. In order to give the police the power to investigate this, you need to have someone who is going...
I should go one step backwards. They also said, ``We're not going to use someone who's under the age of 18 to do those investigations, to pose as a prostitute so someone will approach them. This is simply unconscionable and we're not going to do this.'' Quite frankly, I think the minister and the Department of Justice agree with a position like this.
Having said this and having come to that conclusion, the minister asked, how about if, instead of having the person be under the age of 18, the individual who is trying to get sex for money thinks the person is under the age of 18 because of the representations that have been made to him or her?
That's why you have the wording the way it is. We're talking here about that person believing the young person is under the age of 18. So you're going to have a decoy. The person will pose as someone who's under the age of 18. There will be a ``contract'' between the person who is looking for sex and the person posing as a prostitute. On that basis it's going to be possible to prosecute these cases.
It was not meant to be broader than this, talking also of communications. In our view, that would be going beyond what we were asked to do by the police forces. But I'm not going to mislead you by telling you there are not some crown prosecutors who would like this to be broader than that. Some have raised that possibility with us, and in discussions with us they have come up with some suggestions.
From our perspective, the suggestions that have been made in order to broaden this would most probably make the proposed subsection unconstitutional. Therefore we haven't found the solution to deal with the issue these persons have been raising.
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What we're trying to do here and what the minister is trying to do is solve that problem by allowing someone to pose as a person who's under the age of 18 in order to be able to prosecute these cases, and no more. If in the future someone comes up with the right approach to broaden this so it will be easier to make a prosecution in those cases, I'm sure the minister will be delighted to give that wording and come back to Parliament with amendments.
Mr. Ramsay: So if it said ``Every person who communicates in any place to obtain or attempt to obtain for consideration the sexual services of a person...'', that would broaden it to the point where it would be unconstitutional?
Mr. Roy: I know Madam Angers has been involved in those consultations much more than I have. Perhaps she can enlighten you, and I'll consider the point as she is talking.
Thanks.
Ms Lucie Angers (Counsel, Criminal Law, Department of Justice): One issue that was raised when Mr. Moon submitted that proposal - and we discussed it further with him - was that the offence of communicating for the purpose of obtaining sexual services is already covered by section 213 of the Criminal Code. It already exists per se in the legislation, so we wouldn't have to amend section 212 to deal with that.
The only reason they were saying it should be included in section 212 is to have a higher sentence for a person trying to communicate with a young person to obtain his or her sexual services. It was to have a higher penalty for that offence.
According to the information we had from the provinces, we believed that in any case where there's a communicating offence with a young person, the person would be tried under subsection 212(4). The problem, as Mr. Roy was explaining, was that subsection 212(4) wasn't working because it wasn't enforceable. That's why we addressed the problem of the unenforceability of subsection 212(4) by amending subsection 212(4) rather than going to section 213, which is not used in a case when a juvenile is caught for that purpose.
The Chair: Mr. Ramsay, you're going to have to hold that thought. I'm informed that we have less than 15 minutes left to get over to the vote. We'll rise now until after the vote and we'll be back.
Thanks.
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.1705
The Chair: We're on clause 4.
Mr. Ramsay, did you have any other questions?
Mr. Ramsay: Yes. I wonder, ladies and gentlemen of the jury, if you have come to a conclusion on the question. What say ye?
Mr. Roy: I guess the short answer to your question is no. We're not sure what the word ``communicate'' would do if it were to be added to the section with the appropriate change in the wording.
From my perspective at least, I don't know why attempting to obtain the services of someone who's under the age of 18 or presents himself or herself as being under the age of 18 does not incorporate the word ``communicate''. I don't know how you attempt to obtain those services if it's not by communicating.
If you have to add the word ``communicating'', then the question becomes what the words ``attempt to obtain'' mean. It's a difficult and thorny issue, to say the least.
We start with section 24 of the Criminal Code and then we move to the case law as to what is mere preparation and what is a real attempt. I'm not sure, Mr. Ramsay, that you want me to try to get into that explanation this afternoon.
You may want to make that amendment at the report stage. From our perspective, we'll have to go back to our books and try to figure out if the change is going to have an impact on this situation or not, and if it does have an impact, if it's going to have the impact you wish to see or something else.
We have caucused, the three or four colleagues who are here this afternoon, and we do not know for sure whether this is going to be helpful or not. It's a difficult issue.
Mr. Ramsay: I gather from what you've just said that an attempt -
The Chair: Could I just interject for a minute to clarify?
On the communication section, though, it's a two-way communication. Maybe that's the difference. With section 213(1) of the Criminal Code, the communication could be the prostitute to the john or the john to the prostitute, but when you're dealing with the other, when the person you're trying to charge is the john and not the child - maybe that's the difference.
.1710
Mr. Roy: That would be one consideration, but another one would have to be the meaning given to the word ``communicate'' by the Supreme Court of Canada in the reference that took place from Manitoba. In those days it was section 195(1).
We all know that when we start talking about communication and the limits that must be put on that word to make this constitutional, it gets to be extremely difficult to make nice distinctions. So I don't think it would be honest for me to give you an opinion and say I think it's a good idea, without having considered the matter thoroughly, which we're not in a position to do at this stage. There are a number of issues that need to be looked at, if only because we're using the word ``communicate''. In and of itself, that is problematic.
The Chair: Okay.
Mr. Telegdi, did you have a comment?
Mr. Telegdi (Waterloo): Madam Chair, recalling what the provincial prosecutor said in that section, where you have people under the age of 18 years, what would happen if you said ``or who represents themselves to be under the age of 18 years''?
Mr. Roy: You may have the situation of someone who has the fantasy that he would like to have sexual services from someone who is representing himself or herself as being under the age of 18, but knowing full well that the person is over the age of 18. For instance, you may have someone who is 45 years old and that is part of their shtick. This is something that he or she enjoys, having the partner representing himself or herself as being under the age of 18.
If you have ``representing'' you are covering this kind of behaviour, and I'm far from certain that's what the Minister of Justice wants to do, or for that matter what Parliament wants to do. It broadens this considerably in our view.
Mr. Telegdi: I agree that it broadens it, but I guess I was wondering about the practicality of it. The provincial prosecutor was saying that would enable us to get convictions.
Mr. Roy: If I were a crown attorney, or I was going back to being a crown attorney, which I was at one point in time, I would want Parliament to make my job as easy as possible. If you were to do that, clearly it would make my job a lot easier. The problem is that it's so broad you then have to rely on the Crown to prosecute only the cases you think should be prosecuted, and I don't think this is the kind of signal Parliament should be giving.
In our humble estimation Parliament should prohibit what it considers to be bad behaviour and not leave it up to crown prosecutors to decide that they're going to prosecute in one case but not in another case.
Mr. Telegdi: If somebody is playing that fantasy, will everybody who's charged under this section say it was a fantasy?
Mr. Roy: I don't think so, because we're using the wording ``believes is under the age of 18''.
Mr. Telegdi: But you're going to have to prove that person believes this person is actually under 18. I would imagine that as a defence that person would be saying ``I never believed it; I was only fantasizing'', exactly as you were describing.
Mr. Roy: I would invite that person to take the box and see if the judge is going to believe him or her, because that will be the issue. The conversation went in the following fashion: ``I said this is what I want; you said you're 16. Let's have sex. The police came in and said `You're coming with us'.''
That person would have to take the stand at his or her trial and say he did not really believe he or she was under the age of 18. If the judge believes that, clearly they're going to have a defence, but on the part of the Crown there will have to be a very tight cross-examination.
Without trying to predict what each and every judge in this country will do in those cases, chances are the person will be found guilty because we simply won't believe that he or she did not believe the person was under the age of 18, given the evidence presented by the Crown.
.1715
It's always the same thing. There's always a defence. You can always say ``That's not me; I was not there. I did not believe what was taking place. I did not know.'' It is then for the jury, or the judge if it's a case without a jury, to make the determination as to whether they believe the accused or not.
Mr. Telegdi: We'll have to check on who is right, you or the provincial prosecutor. We'll know it in a number of years.
The Chair: Mr. Ramsay.
Mr. Ramsay: On that point, Mr. Moon very clearly indicated that he didn't think that would fly. Are you saying there's a difference between a fantasy and a belief, and if so, what is the difference?
Mr. Roy: In the case of a fantasy, if we're using the words ``represents himself or herself'', you know full well that the person is not under the age of 18, but you like the fact that he or she is presenting himself or herself as being that.
Mr. Ramsay: Don't you believe that then?
Mr. Roy: No.
Mr. Ramsay: But you're acting on it, so is it not a belief?
Mr. Roy: You enjoy this kind of behaviour. That is all the fantasy is talking about.
Mr. Ramsay: So actions can be motivated by something other than a belief?
Mr. Roy: Absolutely.
Mr. Ramsay: Okay.
The Chair: All right.
Shall clause 4 carry?
Madame Gagnon.
[Translation]
Ms Gagnon: I would like to ask you a question about clause 4. According to that clause, if someone makes a living from prostitution and lives with his or her mother or sister, could those people not be accused of living from the avails of prostitution?
Mr. Roy: Let's understand each other, Ms Gagnon. Are we going back to subsection (2.1) or are you still referring to...
Ms Gagnon: To subsection (3):
(3) Evidence that a person lives with or is habitually in the company of a prostitute... for the purposes of paragraph (1)(j) and subsections (2) and (2.1)...
It could be the mother or the brother. If that person were paying the living expenses of another, could that second person be accused under this provision?
Mr. Roy: The only amendment to subsection (3) of section 212 is to add a reference to subsection (2.1). That subsection already exists in the Criminal Code. Do we understand each other? At the present time the subsection reads as follows:
(3) Evidence that a person lives... for the purposes of paragraph (1)(j) and subsection (2).
The amendment adds "(2.1)".
To answer your question directly, the mother who benefits because her daughter is a prostitute, because the daughter pays for room and board or some such thing at home could be accused under that provision. That is the state of the law as it exists currently.
Ms Gagnon: Even though she is not aware that her daughter is engaging in prostitution?
Mr. Roy: If she does not know that her daughter is engaging in prostitution, she can of course not be accused of living off the avails, but to the extent that she knows and is profiting from her daughter's or her son's prostitution, under the terms of the Act, that would constitute an offence and the person could be charged with it.
[English]
The Chair: Thank you.
Shall clause 4 carry?
Some hon. members: Agreed.
On clause 5
The Chair: We have amendment G-2.
Ms Torsney, can you speak to that?
Ms Torsney (Burlington): Yes. I think everyone has a copy of the amendment, but the purpose is to address those concerned that people over the age of 18 could somehow, even though the Criminal Code says they couldn't, consent to bodily harm. We wanted to spell this out in this section. However, it does allow for cases where people are technically mutilating healthy genitals by getting piercing and tattooing. We must allow them to consent to that as 18-year-olds, even if we don't agree with it.
The Chair: And that is what the amendment is for?
Ms Torsney: That's what the amendment -
The Chair: I think BQ-4 is related to this amendment.
Did you want to speak to that at the same time?
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[Translation]
Ms Gagnon: Yes. I move amendment BQ-4 for two reasons. It reads as follows:
(3) For greater certainly, in this section, "wounds" or "maims" includes to excise, infibulate or mutilate, in whole or in part, a healthy organ, including the vagina, the labia majora, the labia minora or clitoris of a person.
This is in keeping with my bill. Witnesses said that reinfibulation was not specified and that the description had to be more inclusive. I mention healthy organs to exclude any therapeutic exception.
If you are talking about healthy organs, you don't need therapeutic exceptions. Healthy organs don't require medical procedures. I might add to that that the Women's Health in Women's Hands Organization told us that the definition was very limiting and that it obscured the fundamental difference that exists between mutilating genital organs and the medical steps that might have to be taken to protect and improve women's health.
Secondly, that group told us that not only was this special means of defence redundant, but that we ran the risk of allowing the medicalization of a sexist social practice that has no real basis. That was a first group of witnesses.
There is another one called the FGM Legal Community Committee which told us that we should not include any special therapeutic defence in law. They feared that the proposed inclusion in law of such a defence in the case of mutilation of female organs would allow the practice to become widespread.
The groups would have liked lengthier consultation on any eventual law on the mutilation of genital organs. Those people are familiar with that practice and I think we should respect the wish they expressed here which was, first, that we include a broader definition and second, that we not include a medical exemption for the reasons I have just given.
I think they are quite right about the medical exemption. One cannot describe body piercing as a medical procedure. When we refer to the mutilation of genital organs, we know exactly what we are talking about.
The amendment I am proposing makes the provision more in keeping with the wishes of the groups concerned by this problem, respects their wishes, and at the same time, meets their concern about the medical exemption.
Mr. Roy: Madam Chair, the amendment proposed by Ms Gagnon causes us some concerns. It is unfortunate that Mr. Bellehumeur is not here, because on several occasions in the past he has complained to me that the French version and the English version of our legal texts were not exactly similar. In this case, that is one of our concerns. We think that the English version is different from the French.
But our concern centres mostly around the use of the concept of "healthy organ". I can discuss later why we think that the medical exception is necessary in our text, but I would ask my colleague Ms Morency to explain to the committee what the problem around the use of the healthy organ concept is, or as the French text says, "organe sain", according to the definition used by international organizations.
[English]
Carole.
Ms Carole Morency (Counsel, Family and Youth Policy, Department of Justice): We need to start from the beginning of the amendment. I'll use the English text, which is different from the French text. One of the differences you have here is inclusion of the term ``reinfibulation''. The definition already includes infibulation, which necessarily includes whether it's done once, twice or a third time. By definition, infibulation involves closure of the vaginal opening to the point where there's a very tiny opening.
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The concern the medical witnesses from the Society of Obstetricians & Gynaecologists presented on the term ``vagina'' - that you should add that to the definition - was that there might be an opportunity for doctors, under the guise of an accepted medical practice after child birth, to close the opening and be able to perform FGM. What I'm suggesting is that the term ``infibulation'', by its definition and practice, necessarily means closure of the vaginal opening to a point that is not normal, that is not medically accepted, and the medical witnesses provided evidence of that to the committee.
In terms of the addition of the suggestion ``healthy organ'', there are a number of points. The medical witnesses on that point - Dr. Oliver, for example - indicated that in some cases a young girl may present with a condition that is not necessarily an unhealthy organ, but nonetheless presents problems for her. She mentioned enlarged labia minora as an example. Although it presented problems for the individual, it was basically a question of patient comfort. It was not a question of a diseased or unhealthy organ, but it created a situation in which it was medically justifiable to intervene to provide patient comfort. So that's one issue on the healthy organ.
In terms of what ``healthy organ'' means, in the English text it's worded ``in whole or in part, a healthy organ, including the vagina''. It's a very broad definition. It's not restricted to just healthy genital organs. It could include any part on the body. So there's a concern with that.
There's a concern with how you would define healthy organ. The World Health Organization has adopted a definition of the term ``health'', which is that health is a state of complete mental and social well-being and not merely the absence of disease or infirmity. I'd suggest that might give a defence to somebody who wishes to perform what we're trying to prevent. The doctors have already indicated that it's not a medically accepted procedure anywhere in Canada. If anyone were to perform it, they would face professional misconduct.
So doctors are not going to perform it in Canada, but more often than not the people who do perform this procedure are not doctors. It could be a grandmother, an elder within the community, or in some countries a barber. They could have anybody who is not a licensed practitioner perform it.
If you were to adopt a definition such as the World Health Organization's, that person might have a defence because of inclusion of ``healthy organ''. In other words, we did it because this person consented - let's say it's an adult person - and it was for that person's social well-being, and it's not just a question of disease or infirmity.
So we have concerns that the proposal is quite broad and might give a better chance of a defence to someone, particularly a non-medical practitioner who performs this type of procedure. Whereas the G-2 intent is to try to create something that applies to everyone, not just to medical practitioners but to other people within communities that we know traditionally perform this type of practice...
The Chair: Thank you.
Madame Gagnon.
[Translation]
Ms Gagnon: I don't know if I understood correctly, but in the word "infibulation", you seem to include reinfibulation. Reinfibulation is not the same thing. It describes a case where a woman has already been infibulated, whose vaginal passage was then reopened and who will be reinfibulated.
So, to me, it is a completely distinct act from infibulation. When you reinfibulate, it is because the first procedure has already taken place and a second procedure is done on the same person to sew her up again. I think it is a distinct act and that that should be specified in the clause.
That was asked for, and I think they were right to ask for it.
Ms Torsney: Is it different in English as well?
Ms Gagnon: Yes.
[English]
Mr. Roy: As a matter of fact, the French does not say the same thing as the English version, because at present you don't have ``reinfibulate'' in the English.
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To answer your particular concern,
[Translation]
if I follow you correctly, the person would be infibulated once, then the passage is opened, she is infibulated again and the passage is then reopened. We should state in the text that we will prohibit "re-infibulation". According to us, the very definition of infibulation covers the person whether the procedure has been done once, twice, three or four times, or even ten times. In law, it is an infibulation in each and every case.
Since it is an infibulation in each and every case, the second time is no different from the first. Infibulation is just as illegal the second time as it is the third or the fifth time. Do you understand what I mean?
Ms Gagnon: You don't want to include it in the bill because there is no "reinfibulation" in the English version? I didn't understand.
Mr. Roy: It is that the two versions of the amendment don't say the same thing. In the French version, you have infibulation and reinfibulation and this is not mentioned in English. Do you understand?
Ms Gagnon: It wasn't translated?
Mr. Roy: That's not really what I'm saying.
Ms Gagnon: But reinfibulation exists. Are you telling me that it hasn't been included in the English version?
Mr. Roy: It seems to be an error that occurred in drafting the text. There is probably another in that in the English version the definition of healthy organ is much broader than in the French version because of the words that have been used.
As to what I was saying about infibulation, I would say that you can't in a legal text try to specify, to predict the number of times that a person might be infibulated. If the person is infibulated three times, would you then claim that we will have to amend the text to include infibulation, reinfibulation and re-reinfibulation?
Ms Gagnon: I have made speeches on this, I have been to Cairo, and I know that reinfibulation exists as a practice. It exists. We have not invented it. Reinfibulation involves opening the passage and then sewing it up again. I think those groups were right to ask that the definition be much broader and that we include reinfibulation in it.
Mr. Roy: All I can say to that is that the second time, when the passage has been opened and the person is infibulated again, that practice continues to be illegal whether it is done for a second, third or tenth time. Every time, it is an infibulation and in that regard it is an infringement of the Criminal Code. It isn't necessary to add the word "reinfibulation".
Ms Gagnon: To solve the problem of reinfibulation, could we replace the word "including" with "be it"?
Mr. Roy: You are talking about the second problem, which is the broad definition of "healthy organ", where it says "including" rather than what it says in the French version, which is "l'organe sain, soit", which is followed by a closed list.
We would need some drafting specialists to correct the problem but I am not sure that you would get the agreement of the committee even if those changes were made.
Ms Gagnon: Let's say I'm struggling with both problems. Let's go back to the healthy organ issue. Would it be possible to add the words "d'apparence normale" in reference to the healthy organ? We could refer to a healthy organ and a medical procedure could be carried out to correct enlarged labia.
Mr. Roy: I think Ms Morency is in the best position to answer that question. She has thought about this.
[English]
Ms Morency: The witnesses who spoke on that, the two doctors - it's not necessarily a question of being healthy or the appearance, because ``healthy'' doesn't have a standard definition within the medical community.
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The medical exception that's already in G-2 of Bill C-27 talks about the ``normal reproductive functions or normal sexual appearance or function''.
The doctors were clear in saying that this has a very clear understanding in the medical community. There is no debate on that, but I'm not sure the evidence would support that there would not be a debate on healthy appearance or healthy function.
Again, as in the example I gave, it wasn't a question of an unhealthy genital organ for the young girl, but a question of patient comfort and the complications that arose from that.
The Chair: Ms Torsney.
Ms Torsney: On the issue of reinfibulation versus infibulation, I think we've heard testimony that each time it is an infibulation. The courtroom definition is one issue, and we can clear that up, and it's there.
On the issue of reinfibulation and re-reinfibulation, etc., that's an issue for the communications plan around this legislation once it's enacted so that we can get the message out.
You're absolutely right. In the communities that are affected they use some other terms, but that's in the communication of the law. It's not necessarily how the law is actually technically written. I think re-, re-, re- for the person who has six children is quite another story.
On the second issue of the medical testimony, we also heard that there were healthy organs, but they were the wrong kind so they needed to be operated on. There were healthy organs, but there needed to be a change in the case of the child who didn't have an opening for the vagina. There were healthy organs, but there needed to be a vagina constructed, because there was a uterus there or whatever. Those were technically healthy organs, but they needed to have some adjustment to make them more normal. That was what they also pointed out. It wasn't a question of their health; it was a question of their normality.
[Translation]
Ms Gagnon: I am going to settle the re-reinfibulation problem. It comes from the Greek word which means "again". So that settles the problem. Even if the procedure is carried out four times, it means "again".
To reinfibulate means that it will be done again; it has already been done once. So there is no problem with using the word "reinfibulate" since it means that it was done "again".
If you do it four times, it will be called reinfibulation each time. The word means that it has already been done before. It would be done a second, third or fourth time.
[English]
The Chair: All right. Can we go on to BQ-5?.
Ms Torsney: BQ-5 was about the whole issue of consent, and that's really what G-2 was.
The Chair: Hold on. Can we just go back to G-2 for a minute and we'll get this organized?
[Translation]
Ms Gagnon: Have we finished with it?
[English]
The Chair: No, I just want to point something out. On G-2 we have the issue of consent, which is the second part of it. The clerk is suggesting we number that G-2.1 and make it a separate amendment.
Ms Torsney: Does G-2.1 then correspond with BQ-7?
The Chair: We can deal with it when we do BQ-7.
So right now we've discussed G-2. We've discussed BQ-4, and we need a vote on the first part of G-2.
Amendment agreed to [See Minutes of Proceedings]
The Chair: Shall BQ-4 carry? Do we want a recorded vote on it? Okay.
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Ms Torsney: On BQ-4, would you be voting for the English half or the French half? They're quite different. We know this is something that gets you going on a regular basis.
[Translation]
It is not the same thing.
[English]
The Chair: The clerk is going to call the names.
Amendment negatived [See Minutes of Proceedings]
The Chair: Now we're on BQ-5. Madam Gagnon.
[Translation]
Ms Gagnon: We are withdrawing it.
[English]
The Chair: BQ-5 is withdrawn.
There is a contradiction between BQ-6 and BQ-7, so BQ-6 is out. Now we're on BQ-7 and G-2.1.
Madam Gagnon.
[Translation]
Ms Gagnon: I move BQ-7 as a rampart against proposals G-2 and G-2.1 on consent.
The amendment says:
- ... it is not a defence to a charge that the complainant or another person on behalf of the
complainant consented to the excision, infibulation or mutilation in whole or in part of the labia
majora, labia minora or clitoris.
[English]
The Chair: Shall G-2.1 carry?
Amendment agreed to [See Minutes of Proceedings]
The Chair: Therefore, BQ-7 fails.
Clause 5 as amended agreed to
Clauses 6 to 8 inclusive agreed to
[Translation]
Mr. Bellehumeur: Things are clicking along. Shall G-2.1 carry?
[English]
The Chair: Yes.
Shall the preamble carry?
Some hon. members: Agreed.
[Translation]
Mr. Bellehumeur: I want to go back to something. We were moving quickly.
On clause 5, we should note that it was carried on division. I won't ask for a vote, but clause 5 was carried on division.
[English]
The Chair: That's fine.
Shall the title carry?
Some hon. members: Agreed.
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The Chair: Shall the bill as amended carry?
Some hon. members: Agreed.
Some hon. members: On division.
The Chair: May I please have a motion that the committee order a reprint of Bill C-27 as amended as a working copy for the use of the House of Commons at report stage.
Ms Torsney: I so move.
Motion agreed to
The Chair: May I please have a motion that the chair report the bill, with amendments, to the House as the 7th report of this committee.
Mr. MacLellan (Cape Breton - The Sydneys): I so move.
Motion agreed to
The Chair: Thank you very much.
With respect to Bill C-235, this is Madam Gagnon's private member's bill.
[Translation]
Ms Gagnon: Are we going to vote right away? We're not discussing it?
I might have consented to something if one of the amendments I proposed had been accepted. I wanted to see some goodwill on your part in studying this bill. I listened to witnesses and all of the amendments I proposed were rejected. I wouldn't be embarrassed to see those witnesses again. There were good amendments that we should have taken into account. They asked for broader consultation on this bill. It is incumbent upon us to be sensitive to these practices and to listen carefully to the few witnesses we heard here. They had provided us with some very good arguments for these amendments. These people are a bit more familiar with this reality, with the sensitivity that we must show and with the terms that should be used.
I am a bit disappointed to note that all of my amendments were defeated. I think we should have adopted a much more specific bill with regard to that practice. We could discuss my Bill C-235 clause by clause, but I am realistic. I know that you will not vote, but I am glad that I proposed it. The people who came here thought it was a step in the right direction to introduce a bill. We are glad to have a bill, but we could have improved it in light of what we were told by the witnesses before this committee.
I had my office reread all of the reports. The amendments proposed here were realistic and took into account the concerns of certain stakeholders. The Barreau du Québec and the Canadian Bar Association made suggestions, as well as the African associations and the women's groups. I find it deplorable that none of my amendments were passed here, but at least I can say so in the House and I won't be embarrassed in any way.
The fact that the communities concerned by this problem were not consulted more broadly was deplored. I remain quite realistic. I won't debate my bill here, because you've heard enough from me. I "hounded" the minister enough so that a bill would be introduced. "Hounded" is perhaps too strong a word, but I did shake up the people from the Department and their convictions. I wanted a bill, but I would have liked it to be more respectful of the people concerned, of the milieu and of the lawyers. I don't think we devoted enough time to witnesses. The communities concerned would have liked to have been heard before we even proposed a bill. We could have taken a closer look at the issue of reinfibulation and consent.
Well, at least we managed to get consent set at 18 years of age.
Mr. Bellehumeur: Quite so.
Ms Gagnon: I am very happy about that. There is also something about the medical exception. You don't want to add undue detail to the Criminal Code, but you have specified certain things that are in the Criminal Code.
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But there is only one specific thing that has been added with regard to assault. I would have liked to see a more specific bill, focusing on genital mutilation.
Mr. Bellehumeur: Ah, let me console you.
Ms Gagnon: We should have been very specific. If we had been, we would not have needed all of these exceptions.
Thank you, Mr. Bellehumeur.
Please continue, Madam Chair.
[English]
The Chair: Ms Torsney.
Ms Torsney: I want to reflect on what Madame Gagnon said.
In fact, Madame Gagnon, you had five amendments. Two were withdrawn and three were in the same spirit as the government amendments, which reflected the testimony of the witnesses. So three important amendments were made, and that's now down to two.
One of them should have been done in another piece of legislation and not in this piece of legislation with regard to the Canadian Armed Forces. In the case of the last amendment, it was the issue of whether or not we could protect children and send a strong message to people. It's a point of disagreement about whether there should be a five-year minimum for those who pimp children using violent methods.
If anything, we offered greater protection to children. Three of your amendments were in fact in the same spirit. It's just a question of wording and which ways to do it better. In fact, one of them was flawed in English compared with what you wanted it to say. In English it never said ``reinfibulation''.
So you should think that in fact your amendments carried, although perhaps with different wording, reflecting exactly what the witnesses had said. Just because we disagree with the Canadian Bar doesn't mean we don't care about kids.
The Chair: Mr. Bellehumeur,
[Translation]
two minutes.
Mr. Bellehumeur: Just two minutes. This will be for Mr. Roy.
I will begin with some thank you. You certainly listened carefully about consent. I think that this has been a considerable gain, because the Bloc Québécois was advocating that. The bill has been improved by that.
Now that I have distributed compliments, I am going to move on to the criticism. I very sincerely think that we should have had amendment G-1 as soon as the bill was introduced, in order to be able to question witnesses on that. I think that it changes the nature of the bill completely and I would have liked to hear what the witnesses had to say in this regard. I don't know if that is a strategy on the part of the department, and I hope that it is not, because it really changes things a lot. That is the only reason why we voted against the bill as a whole, and not because we do not agree with the principle. We do agree and we asked for it. Yes, there have been some gains, but that part changes the bill a great deal and I would have liked to question the witnesses on it.
[English]
Ms Torsney: Can I point out, Mr. Bellehumeur,
[Translation]
that I put a question about G-1 to each witness?
Mr. Bellehumeur: You had information we did not have. That's even worse.
[English]
Ms Torsney: No, that's not appropriate. It was on the suggestion of one of the witnesses that I asked that.
Mr. Bellehumeur: No more.
The Chair: Okay. Shall clause 1 of Bill C-235 carry?
Ms Torsney: I thought you didn't want to do it.
The Chair: Are you withdrawing it?
Mr. Bellehumeur: No.
The Chair: You want a recorded vote.
[Translation]
Ms Gagnon: Yes, I would like that.
[English]
The Chair: Again, shall clause 1 carry?
Clause 1 negatived [See Minutes of Proceedings]
The Chair: Can we apply the vote to the rest?
Ms Torsney: Yes.
The Chair: Okay. We'll apply the votes to the title and to -
Mr. Ramsay: I'll change my vote on this bill.
Some hon. members: Oh, oh!
Ms Torsney: It's the title of what? You voted for no bill. There's no meat.
The Chair: On the question, ``Shall the title carry?'', call the roll.
.1755
Title negatived [See Minutes of Proceedings]
The Chair: Shall the bill carry?
Bill C-235 negatived [See Minutes of Proceedings]
The Chair: Is there a motion that the chair report the bill?
Mr. Bellehumeur: I so move.
The Chair: Mr. Bellehumeur moves that the chair report the bill with amendments to the House as the 8th report of the committee.
Motion negatived [See Minutes of Proceedings]
The Chair: Thank you very much for all your work, ladies and gentlemen. Thank you twice.
We are adjourned.