Thank you. I will pause momentarily until each and every Member gets a copy of the motion. The motion is in order. To the motion. Mr. Patterson.

Thank you, Mr. Chairman. Mr. Chairman, I would like to request, through you, in order to assist the committee, if it might be explained to us under what typical circumstances a person might be discharged of an offence under the Criminal Code. Thank you.

Thank you. Legal counsel.

The provisions relating to discharge are set out in the Criminal Code. A court has to enter into an examination and then make a determination that it is in the best interest of the accused person, and not contrary to the public interest, to grant either an absolute discharge or a discharge on conditions set out in a probation order. Those are the guiding parameters. Generally, a court will look at each case on an individual basis, determine the gravity of the offence, the effect and impact on the person, the impact on the victim of the offence, and make a determination.

To the motion. Mrs. Marie-Jewell.

Thank you, Mr. Chairman. Before Mr. Patterson starts to speak, I would like to explain the intent of the motion. The intent of the motion is to look after individuals or Members who may be found guilty of sexual exploitation of children or violence against a person. Someone may be found guilty, go to court and be granted a conditional discharge. I think the intent of this motion is to ensure that if a Member is found guilty and granted a conditional discharge, they will still have to resign as a Member. This is going to address all issues of violence against a person, threatened or attempted, and also address Members found guilty of an offence under the Criminal Code involving sexual exploitation of children. That is the intent of amending this bill to ensure that any

Member found guilty of an offence is going to have to resign. Thank you.

Thank you. To the motion. Mr. Ballantyne.

Thank you, Mr. Chairman. Mr. Chairman, I have been a strong supporter of this bill. I have been a strong supporter of the philosophy which is contained in this bill, protecting women and children from violence. In committee, I moved the amendments which added sexual exploitation of children to the list of offences, and other amendments which protected the integrity of the Legislative Assembly in carrying out their mandate to be able to punish their own Members. What we did, I thought, was an amazing evolution in the discussion of this bill. We finally built a consensus between the government, ordinary Members, the women's organizations who appeared in front of the committee and from the letters I and other Members have received from many of the organizations out there who supported this bill.

I think this bill, in reality, is more symbolic than anything else because probably 95 per cent of offences will be covered now. If someone goes to jail, they will lose their seat. We are setting an example and I think the fact that we have gained this consensus is very important. It really means that the mind-set of the political leaders of the Northwest Territories has evolved and moved forward. There is a growing consensus out there in the Northwest Territories that violence won't be tolerated.

However, with this amendment, it leaves questions which make me a bit uncomfortable. As legal counsel explained, the situation where a conditional discharge can take place is only done under fairly careful scrutiny by a judge. A judge has the responsibility to ensure that it won't have a negative impact on that society.

Originally in this debate, some Members of the Legislative Assembly and Members of the public were a bit worried about the net that we were casting and that there might be circumstances which we can't anticipate where an MLA may find themselves trapped by the letter of the law and may actually lose their job when the public can think that that wasn't required.

What I see happening here is that it is taking a bit of flexibility. II there are extenuating circumstances and a court grants an absolute discharge, then there might be cases where it shouldn't be automatic. We should be careful getting into this area because it is murky under law.

I agree that sexual exploitation of children, even with an absolute discharge, probably in 99 per cent of the cases, Members should still be thrown out. However, we still have that power fight now. Another thing --and I think Mr. Lewis brought this up --is now that we have talked about this, the public is going to demand that we do our jobs.

So I was satisfied with the work that Mr. Dent did, that the committee did and that the organizations around the territories have done. I think we have made a very good and strong first step in support of the zero tolerance for violence. I hesitate, at this point, to go ahead with this amendment. I understand what the Member is trying to achieve, but I won't be able to support this amendment, Mr. Chairman. Thank you very much.

Thank you. To the motion. Mr. Patterson.

Thank you, Mr. Chairman. I think I am in a similar quandary to that just expressed by Mr. Ballantyne. I once was a practising criminal lawyer and I do know, from time to time, there are cases where the facts produce the technical evidence of guilt, but the circumstances are truly exceptional. This does happen rarely, but it does happen. This is why the Parliament of Canada, in its wisdom, has given judges some discretion to convict but order an absolute or conditional discharge. So I do believe that we are setting a very high standard if we approve the amendment of the Member. There will be virtually no exceptions under any circumstances.

So, Mr. Chairman, I have some foreboding that there may, in very exceptional circumstances, a miscarriage of a certain amount of unfairness that might occur.

I am comforted, however, when I realize that an MLA who lost his or her seat in such circumstances would still have the right to run again for public office. So in a circumstance, let's say an act of violence that was committed under extreme provocation, which is never an excuse for violence but does explain some kinds of human behaviour, given that we are all imperfect mortals, then the constituents would ultimately be able to judge whether the penalty of loss of seat was appropriate. So that comforts me, Mr. Chairman.

The second thing I think could happen, if we don't pass this amendment, is I can see defence lawyers saying to judges, in speaking to sentence, that the penalty imposed by the Legislative Assembly and Executive Council Act, the loss of a Member's seat, would far outweigh any penalty that the court might ordinarily impose, let's say for a first-time offender on a crime of common assault.

Mr. Chairman, I do believe that this severe penalty which we have placed in our legislation for very good reason, because of the high standards increasingly expected of us by the public and because of our own declaration of zero tolerance... I believe it would cause judges to otherwise use the absolute or conditional discharge so as to spare a person from the severe penalties that would be triggered by a conviction without a discharge by the provisions of the Legislative Assembly and Executive Council Act.

I think a lot of people who would be before the courts would have these severe penalties recited by a counsel in speaking to sentence and the judge might then order a conditional or an absolute discharge; creating, in effect, a loophole that probably would not seem desirable in some circumstances. Mr. Chairman, after having weighed the pros and cons, ultimately, what sways me is that people will ultimately decide whether a Member should lose his or her seat given that the Member has an opportunity to run for re-election in the subsequent by-election that would be held. With that safeguard in mind, that ultimately the judgement will be given by the constituents and not by a court, I'm prepared to support the amendment but I think we should go in with our eyes open knowing that this sets up an extremely high standard for future MLAs. There will really be no room for exceptional circumstances, no room for looking at the interests of the accused. This will be a very high standard. I think we should vote on this amendment knowing that we're setting an extremely high standard for future Members of this Assembly. Thank you, Mr. Chairman.

Thank you. The motion is in order. To the motion.

Question.

Question has been called. The Member for Thebacha.

Just a closing comment, Mr. Chairman. I find that if a Member is found guilty of an offence and then discharged of the offence, they can still remain as a Member under the current bill. Then, I believe, we lose the original intent of the bill. The intention of the amendment is to ensure that there are no loopholes in our bill. If you're found guilty then you're guilty and you should be removed. That's the purpose of bringing forth this amendment. Yes, it is indeed high standards and I would encourage Members to support it because we should be ensuring that we guide ourselves along standards to represent the people that we represent. Thank you.

Mr. Whitford. To the motion.

Thank you. The motion is in order. To the motion.

Question.

Question has been called. All those in favour'? All those opposed? The motion is defeated.

---Defeated

Clause 2. Member for Thebacha.

Thank you, Mr. Chairman. I would like to ask for clarification with regard to clause 2. If a Member is convicted of an offence under the Criminal Code and found not guilty or given a conditional discharge, is it correct to state that a Member does not lose their seat? Thank you.

Thank you. Ms. Stewart, legal counsel.

Thank you, Mr. Chairman. My understanding of the question is if the Member is found guilty but not convicted --in other words, a discharge is granted on some basis --would the Member lose his or her seat. No, the Member would not lose their seat automatically under these provisions. If it's an offence prosecuted by indictment, there would be no automatic loss of eligibility. Similarly, there would be no need to inquire into the circumstances of the offence under the subsection 6.1.(2), but an investigation could proceed under section 6.2 and the Legislative Assembly could exercise its discretion to discipline the Member and expel them from the House.

Thank you. Clause 2. Mrs. Marie Jewell.

Thank you, Mr. Chairman. Is it proper I guess the concern that I have is the current bill, it reads, "after his or her election...convicted of an offence under the Criminal Code." Nothing in there covers whether they are found guilty of an offence. They can be convicted of an offence and given an absolute discharge, whether or not they committed sexual exploitation of children or violence against a person, without having to lose their seat. They could be set free and given a conditional discharge.

You could have lawyers pleading to the judge that the Members are threatened with the loss of their seat and embarrassed by all the publicity, and they can ask for a conditional discharge, and that their client be placed on probation. Then a Member could come back and sit in the House, even though they've been found guilty. I don't think that's the intent of this bill. I'm just trying to find out whether that's correct, if a Member is found guilty, placed on probation and given a conditional discharge then this bill is no good. Would a Member still be able to come back and sit as a Member? Could I get a legal opinion on that?

Ms. Stewart, legal counsel.

Thank you. Clause 2. Mrs. Marie- Jewell.