The Senate knowingly approved a crime bill with an error that could weaken the legislation and invite challenges by defence lawyers.
In a second crime bill in two weeks revealed by The Globe and Mail to have reached the Senate with mistakes in it, the Senate approved measures cracking down on recruitment by criminal organizations or gangs. They became law in June.
But that bill, sponsored by Conservative MP Parm Gill, has a problem that may undermine the law's purpose – to fight those who pressure young people to join gangs. The law makes it a crime to recruit, invite, encourage or coerce someone to be part of a gang. But the word "coerce" was left out of a section setting out the mandatory minimum penalty for recruiting someone under 18 into a gang (six months in jail).
The absence of the word could result in legal challenges to the use of that minimum penalty.
"It is definitely a technical argument that can and will be brought when that section is employed," Michael Spratt, an Ottawa defence lawyer, said in an interview. "It's a word that likely should appear in that section to bring some consistency to the bill."
The senators identified the error in the minimum-punishment section but were told they could not fix it, or a second mistake related to wiretap provisions, without killing the bill.
Mr. Gill, who sponsored the bill, explained to the committee that he had become Parliamentary Secretary to the Veterans Affairs Minister, and was thus no longer permitted to move a motion in the House of Commons to support any changes made by the Senate. Trying to fix the bill "means basically this bill would be killed. It would die," he said. The Senate checked into his statement and found he was right.
The errors highlight the lack of scrutiny given to crime bills at a time when the Justice Department's research staff has been sharply cut and a huge stack of these proposed get-tough laws is before Parliament – 30 are either currently being debated or became law in June.
The problems appear especially evident in bills such as C-394, sponsored by individual Members of Parliament. The Globe revealed last week that the Commons sent the wrong version of a separate private member's bill, C-479, which extends waiting periods for parole, to the Senate in June.
"The impact of errors in the drafting of criminal legislation can have dramatic results," said Mr. Spratt, who testified about the bill on behalf of the Criminal Lawyers Association. "This sort of sloppiness wouldn't be countenanced in the economic area or other areas of legislation, but for some reason, and I suspect it's to avoid some scrutiny, it seems to be encouraged in the criminal sphere." Private member's bills receive less attention from Justice Department lawyers than government bills do, he said.
Conservative MP Kyle Seeback had asked at a Commons committee that the word "coerce" be added to the bill, and the NDP members of the committee supported his request. Liberals voted against the bill because they oppose mandatory minimum sentences.
There is some disagreement about how serious an error it is. Senator George Baker, a Liberal appointee, raised concerns, but both Mr. Gill and a Justice Department lawyer, Matthew Taylor, said the omission did not create a worrisome gap. Some Conservatives, after hearing from Mr. Gill, suggested that the independent Liberals in the Senate were trying to kill the law by insisting on trying to fix it.
Still, the Senate's legal and constitutional affairs committee appended to its approval of the bill two "observations" noting the errors, and then expressed its concern at being unable to fix the bill without killing it.
Mr. Baker said in an interview that he found the episode ridiculous. "What happened was it got to the Senate where everyone said, 'Yeah, there's a big error here, but we're going to leave it in.' Now you have bad law in the Criminal Code. It's an embarrassment." Although senators have asked the House to pass another bill to fix the errors in the new law, "that will never be done, let's put it this way."
Mr. Gill replied in an interview that another bill will be introduced in Parliament to fix this one. "How can George Baker determine that it's not going to happen? If he has the ability to see the future, then I clearly don't. I've been assured that that will happen."