Justice committee  Yes. I think as long as they're providing transportation services to the public and they're using a vehicle when they do it, this provision would capture it.

Justice committee  Absolutely, the judge will always have the ability to consider whatever circumstances he deems appropriate as aggravating or mitigating, given the particular facts of the case.

Justice committee  It's another good question. We have another provision in the code in that similar type of language, “engaged in the performance of their duties” and it has been interpreted fairly restrictively in those contexts as relating to a specific duty that the professional has and that they are engaged in performing that duty, just as the words would say.

Justice committee  I think they would be, provided that they are “an individual who operates a vehicle used in the provision of passenger transportation services to the public”. I think it's a non-exhaustive scheme because “vehicle” provides a number of examples—bus, paratransit vehicle—so you could read in other types of vehicles.

Justice committee  It's interesting. I think it's hard to say whether the rickshaw driver would be captured, because of the point Mr. Wilks has made with respect to the definition of motor vehicle. If the courts read “vehicle” in a more expansive way than “motor vehicle”, to include vehicles that are propelled by muscular power, then yes, I think it would be.

Justice committee  I think I understand the question. I think it is a good question and I think the explanation by Madam Boivin is a good one. The proposed provision says “vehicle includes” and then it lists a number of specific types of vehicles. From an administrative perspective, I think police officers and the courts are going to understand that the definition is going to be read consistently with the definition of motor vehicle in section 2.

Justice committee  I don't know if it's fair to say that it would prejudice the decision. The interplay between Parliament and the Supreme Court, I think, is well known. You as parliamentarians have the ability to enact legislation as you see fit. I would suggest that were you to pass an amendment of this nature, the parties would notice that, if it had occurred prior to the case being heard by the Supreme Court.

Justice committee  Thank you. I think the rationale is fairly self-evident. We have ongoing litigation, as you've alluded to, before the Supreme Court of Canada. I guess one of the facts of passing legislation that would amend the Criminal Code in a way that would touch upon a provision that is currently the subject of constitutional litigation would be that if the legislation were found unconstitutional, the provisions that Parliament had chosen to amend would no longer have any force or effect.

Justice committee  I think you're right. If you choose to take it out and it's found to be constitutional, then the opposite holds true. If you haven't passed legislation, then obviously this type of provision wouldn't exist in the Criminal Code. At some point, were the government or a private member interested in seeking amendments to the Criminal Code to allow for that kind of reform, then that would be a decision they would have to take.

Justice committee  Just to pick up on a few things, certainly it wouldn't be inconsistent. It would provide greater clarity to the courts if you had that type of language; this is one factor among any number of factors that a court can take into consideration. I think that kind of language would anticipate some of the concerns that might be raised in court by a defence lawyer, that because Parliament has not specifically enumerated these types of factors, by consequence they don't want that to be taken into consideration.

Justice committee  Well, I guess I can provide you some context to help you in your decision-making process. As you know, the courts will be able to take into consideration whatever factor they think is appropriate in terms of their jurisdiction to decide that something is aggravating in a particular circumstance, so there is that broad discretion on the part of the courts to begin with.

Justice committee  Certainly, it's similar to other provisions. I wouldn't go as far as calling it inconsistent. I would say it's different in the sense that, for example, the reference to the Controlled Drugs and Substances Act is broader in application. So if this committee and Parliament were to adopt the language as proposed here, it would be taking a deliberate policy choice to limit this aggravating factor to these circumstances.

Justice committee  I think the other piece to recognize too is that from a criminal law perspective, these concepts as they appear in Bill C-310, violence, force, and coercion, are roughly talking about the same thing in a criminal law context. I don't have the amendment in front of me, but my sense from hearing the remarks is that the idea is to try to avoid potential confusion in the courts by police officers, by prosecutors.

Justice committee  That's what it looks like. Thank you for the draft amendment. Certainly I think that “force” and “coercion” would capture your concerns, Mr. Harris, in terms of the threats of violence, overt threats, not necessarily to you—“you know what we did in this situation”. They are essentially implying that if you're not careful, it will happen to you as well.

Justice committee  Absolutely. My understanding of the intent behind the bill is to really expand on and codify what the law is already. When the trafficking offences were developed and enacted in 2005 and this test of exploitation was developed, it was meant to capture all of the conduct you've discussed, not just the physical violence but also the psychological violence—the threats of deportation, the threats of arrest.