Bill C-31 (Historical)

An Act to amend the Criminal Code, the Corruption of Foreign Public Officials Act and the Identification of Criminals Act and to make a consequential amendment to another Act

The enactment amends the Criminal Code, the Corruption of Foreign Public Officials Act and the Identification of Criminals Act and makes a consequential amendment to the Canada Evidence Act.
Among other things, the amendments
(a) provide greater access to the telewarrant process for peace officers and public officers;
(b) reform the expert evidence regime to give parties more time to prepare and respond to expert evidence;
(c) allow the provinces to authorize programs or establish criteria governing the use of agents by defendants who are individuals;
(d) authorize the fingerprinting of, photographing of or application of other identification processes to, persons who are in lawful custody for specified offences but who have not yet been charged;
(e) expand the jurisdiction of Canadian courts to include bribery offences committed by Canadians outside Canada;
(f) expand the list of permitted sports under the prize fighting provisions;
(g) make minor corrections to the pari-mutuel betting provisions, delete unnecessary provisions and update the calculation of pool payouts;
(h) update the provisions on interceptions of private communications in exceptional circumstances;
(i) reclassify six non-violent offences as hybrid offences;
(j) create an offence of leaving the jurisdiction in contravention of an undertaking or recognizance; and
(k) delete provisions of the Criminal Code that are no longer valid, correct or clarify wording in various provisions and make minor updates to others.

Criminal Code

[Scott Simms, Liberal, Bonavista—Gander—Grand Falls—Windsor, NL]

In the mouth.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

In the mouth, as my colleague from Newfoundland says, Mr. Speaker.

The real point is my mayor tells me there are big tourist dollars in promoting the ultimate fight championship definitions that are proposed to specify the exemption in prize fights, which are currently not in this legislation, in section 83 as amended. It is also important that boxing clubs across our country do quite a bit in the realm of early intervention in dealing with our youth. They have a specific definition of what their sport entails.

I wish the government had arrived at the housekeeping aspects of this bill a lot earlier. It has wasted a lot of time and a lot of TV tape in bringing forth statements about laws when it could have dealt with the housekeeping aspects.

With regard to fingerprinting, I am looking at the chairman of the justice committee. I hope he understands that these two issues, the extraterritorial warrants and fingerprinting, must be examined carefully, with caution and with sensitivity, keeping in mind that we are from different parts of Canada. We need to have respect not only for the law, but for each other and for Canadians.

[The Acting Speaker, Conservative, Barry Devolin]

It is my duty, pursuant to Standing Order 38, to inform the House that the questions to be raised tonight at the time of adjournment are as follows: the hon. member for St. John's South—Mount Pearl, Search and Rescue; the hon. member for St. John's East, Fisheries and Oceans; the hon. member for Western Arctic, Arctic Sovereignty.

[Ed Fast, Conservative, Abbotsford, BC]

Mr. Speaker, I look forward to debate at committee if in fact the bill does get to justice committee. Maybe a separate committee will be established to look at this because many different issues are addressed in the bill.

I appreciated the member's general support of the intent of the legislation. I believe the process at committee will be helpful in discerning whether some of the fingerprinting initiatives that we hope to move forward are what Canada needs.

My question for my colleague is on the last point he raised, and that has to do with looking at the whole issue of prize fighting. The provisions in the Criminal Code are hopelessly out of date and he has as much as admitted that.

Has he had a meeting with representatives of the UFC, which represents the new type of martial arts fighting? Has he had a chance to look at its proposals for legislative reform, which it hopes the committee will look at when we deal with Bill C-31? Does he approve of the proposals that the UFC has brought forward in terms of revising the definition of prize fighting?

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Mr. Speaker, indeed, I have. The member, who is a very good chairman of the justice committee, will know that members are often visited by people who want to press law amendments on us.

In particular, a proposal to further define mixed martial arts, which is really what we are talking about, could be read at the committee and could probably be accepted by most committee members as just modernizing how we define prize fights in the first place.

I looked for the last amendment to section 83, which was in 1985, and then some years before that. As I mentioned, the definition has not grown with the evolution of sports, which causes a problem for some local municipalities and provinces with respect to licensing events, insuring them and having legally advertisable and profitable events for communities that are sanctioned by law.

I very much look forward to looking at that at committee and seeing whether it could be supported.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

Mr. Speaker, in response to my colleague from Moncton—Riverview—Dieppe, I would go further and say, as a member of the Olympic committee, that new Olympic disciplines such as karate and judo have been added. These disciplines were not included around 1985. This absolutely needs to be updated. I think we could easily find some common ground on that at the Standing Committee on Justice and Human Rights.

The question I have for the hon. member is on fingerprints. I would like him to elaborate on that and I will come back to this in a few moments. With respect to fingerprints—or anthropometric records in the jargon of the legal system—in what he has seen in his practice or in what he knows in his field, does he believe that police tend to return these anthropometric records—that is, photos and fingerprints—to an individual when they know that no charges will be laid against him?

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Mr. Speaker, first of all, I would like to thank the hon. member, who also serves on the Standing Committee on Justice and Human Rights. His question conveys the concern he has.

I will quote the Minister of Public Safety who introduced this bill at a press conference.

He said, in the process, if the people wind up not being charged, then they have the right to ask that their fingerprints and photographs be deleted from the system. Would it be like returning something to a store? Would there be a service desk at the police station? People could go to the desk, say that they were not charged and ask to get their photographs and fingerprints back.

The member for Edmonton—St. Albert said that the courts of appeal say that once we have them, we can keep them. We all know police officers, and we all like them. However, we also know that once they have a record on somebody, it increases their tools to do their jobs. Therefore, they are very unlikely to ever give those fingerprints and photographs back.

This is why we have to be sure that they are taken in a case that makes sense. It has to do with flight risk, the seriousness of an offence, perhaps, investigative techniques that make it difficult for the crown to prefer charges right away. These clearly are circumstances we have to get into at committee.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Mr. Speaker, I want to go back to the issue of the prize fighting amendments.

Did my colleague from Moncton—Riverview—Dieppe see a piece in the Toronto Star this weekend, or if he is aware of it? It stated the Ontario government was very much opposed to expanding the definition of prize fighting. It appears that it is specifically opposed to letting the UFC into Ontario.

A former premier of Ontario, who is a member of my colleague's party, is the chief lobbyist for it. Has the member had contact with it and could he advise as to his own position on the expansion and allowing UFC into Ontario? It appears a number of the other provinces are allowing the UFC in now because they interpret the code differently. Is he aware of that? Where does he stand vis-à-vis the position of Ontario?

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Mr. Speaker, I see my friend from York South—Weston behind me. I come from Moncton, New Brunswick. I am fairly close to an attorney general and I speak to him about things. He seems to think and the mayor of Moncton certainly thinks that the proposal to amend legislation and modernize it to reflect what goes on out there, in terms of events, seems to make some sense.

What I said earlier about unifying the country may not jive with this comment. I do not check the Toronto Star, or Toronto newspapers, or Ontario newspapers or politicians every morning when I get up, but we will take it under advisement at committee. Windsor in particular is a gateway to Canada. We have to be clear that Windsor, which is part of Ontario for now, has to be in step with the rest of Canada. Windsor is where everything starts in terms of activities and promotional literature.

[Paul Szabo, Liberal, Mississauga South, ON]

Mr. Speaker, I hope the hon. member will scour the bill to find out what documentary evidence is necessary to do a proper committee review and request it now, because it might take that long to get it.

At the beginning of his speech, the member mentioned that this appeared to be an omnibus type bill with a lot of elements to it and a lot of issues. Were the members of the committee offered a briefing on this bill in advance so they could look at some of these preliminaries and so the quality of the debate could be more incisive rather than interrogatory?

It seems to me to be such a broad issue that any government intent on having good legislation would ensure that all hon. members were well prepared to participate in debate.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Mr. Speaker, in brief, no. When I arrived here in 2006, we used to insist on departmental briefings. Some bills are pretty short. This is a pretty large bill. I can only take my friend the chair across the way as speaking a bit for the government, suggesting there might be a legislative committee, which is a bit like putting the cart before the horse.

We should have had a briefing. I hope we will before we get to this. Bill C-31 is not on our work plan before Christmas. The hon. member's usual sage advice will be taken into consideration when we meet.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

Mr. Speaker, I rise here to speak to a bill for the second time today, but first of all, I must say I will probably be less critical of Bill C-31 than I was, and I will continue to be, of Bill C-36, if that bill ever comes back to the House. That being said, this is an interesting bill, and the Bloc Québécois will support it so it can be referred to the Standing Committee on Justice and Human Rights for a more thorough study.

I hear some Conservative Party members applauding. I invite them to save their applause for five or ten minutes from now. I am not sure if they will still want to applaud, but for now, I cannot help but notice their applause, and I think it is interesting.

I do not know why, but the Conservatives tend to insert what we call a poison pill into an interesting bill. We were reading the bill, which has about 30 pages and 40 clauses, and everything was going well until we got to clause 39, which would amend the Identification of Criminals Act. I will come back to this. Our criminal law includes a very important principle, which the Supreme Court has reiterated on a number of occasions, and that is the presumption of innocence. A person is presumed innocent until found guilty by a jury or a judge who knows the law, on the basis of evidence introduced before his peers. The Supreme Court has said this time and time again. I would remind the members that we do not believe that subsection 2(1) of the Identification of Criminals Act can be amended, because that would go against the presumption of innocence.

I will take this argument further. The main downside to this bill is one small paragraph on the last page of the bill that seeks to amend paragraph 2(1)(a) and that reads as follows:

(a) any person who is in lawful custody after being arrested for...

That means that this paragraph would apply to everyone who is arrested for any reason. People could be fingerprinted and photographed from now on. It is clear that, if the government maintains its position and insists on amending this section, we will fight to the finish to vote against this bill and against this clause, and it is clear that we will try to have this clause removed from the bill in committee. We hope to do so with the support of the Liberals and my NDP colleague.

Why remove this clause? Because it would open the door to all sorts of abuses. My colleague from Edmonton—St. Albert can say what he likes, but you have to know the territory, as we say, you have to have argued cases and know criminal records to know that the police have a tendency to go overboard. Often, they are willing to keep a record on anyone for anything. Obviously, this is not always true, and it is not true of all police officers. But there are safeguards in place, and one of them says that a person cannot be fingerprinted until he or she is charged with or convicted of an offence. That means that at present, an individual who is convicted or who is charged—because the person has to be charged—can be photographed and fingerprinted.

In general, this is how it works. A person receives a summons requiring them to appear in court. They must plead guilty or not guilty and then they may be fingerprinted and photographed.

This process must not change and we will do everything in our power to ensure that it does not change because it is the fundamental right of an individual to be presumed innocent until found guilty. This presumption of innocence is extremely important in our criminal law.

It is unfortunate because it overshadows good intentions. I come from an area 600 km north of Ottawa that is regularly visited by the itinerant court. I also argued before this court when I was a lawyer. The itinerant court travels to Inuit and Cree villages on the shores of James Bay, Hudson Bay and Ungava Bay as well as in regions such as ours.

I will return to the main point of Bill C-31: telewarrants. We believe that the process must be modernized. Police forces are quite right to ask that telewarrants be easier to obtain and that they be made available more quickly.

For the benefit of our audience, telewarrants are search warrants or other types of warrants. The first example that comes to mind is this. Someone is stopped after a motor vehicle accident. The police approach the vehicle and smell alcohol. The person is in his car and unable to give his consent because he is unconscious or too drunk. In any event, he must be taken to hospital. The police accompany him to hospital and obtain a telewarrant over the phone. A justice of the peace, located in an office somewhere in Quebec, will authorize the taking of a blood sample from the individual to determine his blood alcohol level. We agree with the legislator that this telewarrant process should be retained and made more accessible.

The police are right. At present, in 2009, if they suspect that a criminal act has been or is about to be committed, and if they must quickly obtain a search warrant, they have to go before a judge, have him sign a document and then proceed with the search.

We think that the bill is a good idea, because it would modernize the Criminal Code. Even though I am a criminal lawyer, I think that we need to make it easier for police officers to do their jobs and gather evidence. One way of doing this is through telewarrants.

We feel that improving access to telewarrants is a good thing. Police officers must have the possibility of obtaining telewarrants, whether or not they are written or used.

This bill deals with many other things, such as fleeing to another province, and the amendment in response to the Supreme Court ruling in R. v. Six Accused Persons, which amends section 184 of the Criminal Code. There were a number of amendments to be made to the Criminal Code.

There are many details. This bill is long and very technical, but it is interesting. However, there are two main points I want to talk about. The first is representation by an agent, or non-lawyer.

I have a hard time accepting that an agent could represent a client in court, when the client is being charged with a summary offence. The Bloc Québécois has a hard time agreeing with this proposal for a number of reasons.

Representation by a lawyer is extremely important, especially in criminal law. When it comes to appearing, we could probably make some concessions. But I have some serious problems with having an agent question and cross-examine witnesses for and on behalf of the defendant.

I have the same concerns as the Quebec bar, which has provided us with information on this subject, saying:

The Barreau du Québec is concerned that this proposal, as written, causes confusion about the meaning of “agent”, and could lead to lawsuits against individuals for illegally practising the profession.

I am also very worried about this proposal. In Quebec, lots of people have acted as lawyers and have represented individuals, such as claimants before Quebec's occupational health and safety commission. The same thing has happened at the Canada Employment Insurance Commission. People with no legal skills whatsoever have represented others before the board of referees because, they said, they were friends of the claimants. If that same system were to apply to the Criminal Code, we would start having serious problems.

I am very surprised that the government would propose such a thing at the provinces' request. I can confirm that the Quebec bar does not support this proposal. I would be very surprised to hear that the Government of Quebec requested this kind of third-party representation. I believe that the committee will have to pay special attention to the issue of representation by lawyers when it comes time to study this bill.

The other point I want to raise has to do with the amendment to section 2 of the Identification of Criminals Act. I want to discuss this because I think it is important not to create this option. Above all, we must not give the police unrestricted power to take a person's fingerprints and photograph, because there is no telling where that information might end up. Such records, known in our jargon as anthropometric records, could make their way to the Canadian border, to customs, or elsewhere.

If that happened, an individual who has never been charged with anything might be prevented from leaving Canada. The police might go so far as to arrest people for dangerous driving or a highway safety code violation, and tell them to go to the police station for fingerprinting and photographing. The police might even have photographic and fingerprinting equipment with them at the scene of the arrest. I think this goes very, very far. We have to create a process for destroying the fingerprints and photos of people who are not charged with anything and will never be charged, people against whom no complaint or charge will be filed.

At present, not only do we have an individual's fingerprints and photograph—the anthropometric record also included that information—but we know that genetic records can be kept on people who have given a drop of blood, saliva or a single hair for the purposes of DNA identification. We must not forget that.

However, section 10 of the DNA Identification Act contains a provision for the destruction of genetic material.

We think this clause needs to be amended to include the destruction of photos and anthropometric records if no charges are laid within a given timeframe.

One needs to have practised criminal law to understand that it is very rare for clients to come back to us when no charges are laid to ask that their fingerprints and photos be destroyed, even when they have been lawfully taken.

When someone is acquitted of the charges laid against him, his fingerprints and photos should be destroyed automatically, but that is not the case at this time. That is not what happens. Needless to say, this certainly is not more likely to happen if we allow the Identification of Criminals Act to be amended.

We believe that the title of the legislation says it all. It is called the Identification of Criminals Act. So why should someone who has not yet been declared a criminal be forced to submit his photos and fingerprints? In our opinion, this makes no sense, and we find this extremely prejudicial for someone who is arrested.

We think this bill is important. It is an interesting bill and I will close by talking about fighting. I listened to my colleague from Moncton—Riverview—Dieppe and also to my colleague from Windsor. They asked a very important question. There is prizefighting and now throughout the United States there is this type of extreme fighting where violence is involved, of course, but also bets and so forth.

However, we have to be careful because there is very well organized fighting. We know about boxing, but in terms of the Olympic movement, judo and karate have now been introduced. These are extremely interesting sports that are gaining in popularity in Canada.

Judo and karate events are organized under the supervision of national and international agencies. International agencies including the International Olympic Committee, the International Judo Federation, and the World Karate Federation have asked us to ensure that the Criminal Code is amended. I will give an example related to this type of fighting. Canada cannot host the world cup of karate or judo because under the Criminal Code, such fighting is illegal.

We think it is important that this be amended in the Criminal Code. That is what a number of provinces and Quebec are asking for. Judo-Québec, the Fédération québécoise de karaté, the National Karate Association of Canada and Judo Canada, following representations by the International Olympic Committee, which would like to hold major competitions in these two sports, cannot take part.

I see that my time is almost up, but I will close by saying that this is an interesting bill that we will have to address in the Standing Committee on Justice and Human Rights. There are two points, and I have mentioned them, but I think it is important that we respond to the requests and modernize the Criminal Code

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Mr. Speaker, before I ask the member for Abitibi—Témiscamingue a specific question, I want to say that with respect to a question posed by the member for Mississauga South with respect to briefings, it is my understanding that the critics of all the parties did receive briefings with respect to this bill, but, of course, neither he nor the member for Moncton—Riverview—Dieppe are Justice critics. However, I believe their Justice critic, also from New Brunswick, would have received the briefing.

With respect to the speech by the member opposite, who sits on the Justice committee and who likes to point out that he is an expert in criminal law and that I have not practised criminal law, I have a question with respect to agents.

I am troubled, quite frankly, by his description of the perceived flaw in the bill with respect to court agents. He indicated that the Quebec Bar Association would be opposed to this, and that should be of no surprise to anyone. Bar associations protect lawyers and they protect the businesses and clients of lawyers. However, does the member not believe that individuals who cannot afford lawyers are still entitled to some representation? Court agents are very valuable in remote places, in northern remote localities and native populations where native court workers give sage advice to individuals who have trouble navigating their way through the court process.

Nothing in the bill precludes an individual from retaining a lawyer if he can afford one or if legal aid will provide one. It just expands the mandate in areas and situations where the provinces and territories can put programs in place to expand the use of paralegals or what they are commonly referred to as agents.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

Mr. Speaker, I thank my colleague for this clarification because that was not my understanding when I read the bill and comments. However, having seen and worked with them myself, I can assure my colleague that paralegals do exist, even in Quebec, especially in aboriginal communities, especially among the Inuit.

It should be understood that paralegals provide advice as my colleague stated quite correctly. They provide helpful advice, for example, what time to appear in court. They say: “Do not forget to go to court at such and such time”, and so forth. That is not what the bill states. In any event, from what I have read, these people can also ask questions. And that has left me wondering.

Having been a lawyer for more than 30 years, I can say that the Criminal Code and the decisions in case law are so complex that they are difficult to navigate even for a lawyer who does not go to court regularly. As for paralegals, I agree with that. I think it is a good idea, that they should continue and that there should be more in certain areas.

[Ed Fast, Conservative, Abbotsford, BC]

Mr. Speaker, the member does good work on the justice committee and, more often than not, we disagree on the bills that are before us, but he is a hard-working member of the committee and he did raise the issue of prizefighting and the fact that Bill C-31 would modernize how we deal with prizefighting in Canada.

As members know, that portion of the Criminal Code has not been revised for decades. The member knows that from his own province of Quebec heralds a world champion of mixed martial arts, Georges St-Pierre. The member also referred to the fact that the Olympics include judo and karate. He forgot wrestling but that is also one of the elements of mixed martial arts.

The member was not able to clearly state whether he supported changes that would allow mixed martial arts to take place in Canada, so I would ask him if he could clarify that and take a position on it here in the House.