Statement made on 23 March 2011 by Senator George Baker
Hon. George Baker:
Honourable senators, I will speak only briefly, as another senator on this side will speak to the bill.
I will echo the words of the mover of the motion. On Monday, the committee held 10 continuous hours of hearings on this bill during which senators from both sides of the house examined witnesses.
The main point of contention on the bill is its constitutionality. Senator Joyal said that he believed the bill would not pass constitutional muster. The evidence from the Canadian Bar Association and the Barreau du Québec was in support of Senator Joyal's opinion. Professors from universities in British Columbia and the East Coast agreed with that opinion.
As the honourable senator said a few moments ago, the meeting was an interesting one. The lawyers and students who will look back at those proceedings when the constitutionality of the bill is being determined will be interested in the debate that was held between the minister and Senator Joyal, and between Senator Carignan and the representative of the Canadian Bar Association.
Senator Joyal cross-examined the Honourable Vic Toews. Minister Toews is the ideal minister to promote this legislation. He has a history as a prosecutor, and the main contention in the bill is whether we can pass retroactive legislation. According to the Canadian Bar Association and the Barreau du Québec, the bill is retroactive. The minister disagreed, saying it is retrospective in application.
If we look at the history of the Honourable Vic Toews, we will see that he was the prosecuting attorney in the first case litigated on this question. He was prosecuting the banks for not applying labour laws. Of course, we were all hopeful that he would win the argument.
It had to do with hours of work and pay conditions for tellers in the chartered banks. The banks said that the bill was retrospective in nature and, therefore, unconstitutional. Mr. Toews lost at the provincial court level, took the case to the Superior Court level and, as Senator Joyal pointed out, lost again. Therefore, Senator Joyal asked what makes Minister Toews believe that, having lost the argument back then, he will win it now with this bill.
Do not forget that the people who inspired the formulation of this bill are Vincent Lacroix, Earl Jones and other persons who have been convicted of, and sentenced for, defrauding a great number of people of their resources. Under this bill, parole conditions will be changed.
The other argument that I found interesting was between Senator Carignan and the bar. The representative of the bar said that parole conditions and timing of parole are part of sentencing.
As honourable senators know, subsection 11(i) of the Canadian Charter of Rights and Freedoms says that if a law is changed between the time someone is convicted and their sentencing, the lesser prejudice of sentence shall apply as punishment. Senator Carignan asked how parole can be part of the punishment in sentencing. The bar, of course, said just the opposite.
That discussion was fascinating, and it reflects on all the bills that we have passed here in the Senate in the past two or three years. For example, we recently passed the Tackling Violent Crime Act, and it has been stuck in the courts across this country ever since.
I reference for honourable senators the case of R. v. Randhawa of the Ontario Court of Justice, 2010, Carswell Ontario 10426, a case decided three months ago. The judge reviewed some of the other cases in Canada that were hung up in provincial court on this question.
I will quote from paragraph 3:
The decision in R vs. Jacox, British Columbia, a decision of Morgan Jay of the British Columbia Provincial Court, Morgan Jay goes through in great detail the reasons he finds that the amendments to section 252.2, which were made on July 7, 2008 as a result of the Tackling Violent Crime Act, result in the question being valid and I will attempt to summarize his reasons.
As honourable senators understand, whether something is unconstitutional is really not the question. Something can be unconstitutional and still apply if it passes section 1 of the Constitution. If it is a reasonable limitation on the fundamental constitutional rights of society in general, it can be saved by section 1. Judges in each jurisdiction of the country were debating this point.
The judge made reference to the case that I cited, and then, at paragraph 5, he comes to the conclusion that section 8 cannot be saved by section 1 of the Charter. As a remedy — paragraph 6 — he reads into the amended section the words.
In other words, something passed by the Senate can be unconstitutional, be saved by section 1, or, if not saved by section 1, words can be read in to make it constitutional.
The arguments that took place are fascinating from the point of view that the minister said, "Look, we know this may be unconstitutional." These were his exact words. He said, "This is retrospective legislation. I admit it." All of these questions on constitutionality that deal with the intent of Parliament — that is, what was the intent of Parliament? What was the intent of the government at the time? Honourable senators can consult experts such as Sullivan and Driedger for their interpretation of statutes, but you do not have to do that here because the minister appeared before the committee and said, "Look, this is retrospective in application. This will apply to persons who are already in jail and who will be seeking parole in the future." The minister admitted it outright, so that does not even come into the question.
I am sorry for going on so long, honourable senators; however, it was a fascinating 10 hours. I made it to about nine hours.
Honourable senators may wonder: Why would the Senate not take up section 10 of this act and try to amend it? I will tell you why not, honourable senators, and why I think the matter should go to a vote, as is requested by members opposite in promoting the government's position, with which I do not agree. Why can it not be amended? It cannot be amended because the House of Commons table and the Speaker of the House of Commons ruled, when it was before the House of Commons, that to change the retrospective aspect of this bill would violate the principle of the bill and, therefore, would not be permissible. I can understand that, honourable senators, because you have the government saying something is retrospective and here it is clearly drawn out — and, do not forget that when we got this bill in 2009, it was not retrospective. It did not date it back. In fact, it said just the opposite; it would apply from the moment it was proclaimed. Now it is changed intentionally by the minister.
Honourable senators, we cannot bring forward an amendment in the Senate that has been ruled out of order and contrary to the rules of Beauchesne and Erskine May before that because that would certainly be against the principles. You would have mayhem. One house would say that you can do it and one house would say that you cannot. You cannot get into that.
Honourable senators, following those who wish to speak on this bill, I suggest that we proceed to a vote on the bill forthwith and then let the courts review all of the evidence before the Senate committee.
One thing is certain, honourable senators: The Senate has done its job on this particular bill.
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