An Act respecting the administration of oaths of office
This bill was previously introduced in the 40th Parliament, 3rd Session.
This bill, the first introduced in any session, is a formal tradition rather than proposed legislation. (It has nothing to do with oaths of office. The Senate equivalent is called An Act relating to Railways and—you guessed it!—in no way relates to railways.)
Stephen Harper Conservative
Introduction and First Reading
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March 7th, 2011 / 4:35 p.m.
The Chair Gary Schellenberger
This is in response. This is the final reading of the bill. The bill has been debated in the House. There have been questions asked in the House. There have been answers given.
Mr. Lamoureux, because you're a new member, we're not going to go back and start over at the beginning of Bill C-55. We are right now on clause-by-clause.
Citizen's Arrest and Self-defence Act
March 4th, 2011 / 10:05 a.m.
Rob Nicholson Minister of Justice and Attorney General of Canada
moved that Bill C-60, An Act to amend the Criminal Code (citizen's arrest and the defences of property and persons), be read the second time and referred to a committee.
Mr. Speaker, I am excited to get going on Bill C-60, An Act to amend the Criminal Code (citizen's arrest and the defences of property and persons). Bill C-60 represents a responsible expansion of a citizen's power of arrest as well as the simplification of the self-defence and defence of property provisions in the Criminal Code.
I want to thank the initiatives of a number of people and one of them is certainly the member for Mississauga—Erindale who is also my parliamentary secretary. He has been a champion of the reform in this law. I am pleased to join with my colleague, the member for Bruce—Grey—Owen Sound. I thank him and my colleagues who are in the House with me. They have been very supportive of our justice legislation.
Mr. Speaker, I can tell you that all Canadians are grateful for all the support that you have given us on these bills.
The bill before us today is balanced and necessary. In describing the particular amendments contained in this bill, the bill will focus on three main areas: first, what the law currently provides for; second, the policy rationale for reform; and third, most important for statutory interpretation purposes, the legislative intent behind the elements of the reforms.
On this last point, it is crucial for colleagues to be reminded that the debate in this place and the other provides guidance to our courts in finding the legislative intent of the laws we pass and is often cited by our courts in coming to a decision.
I will first deal with citizen's arrest reforms, followed by the defence of property and then self-defence.
With regard to citizen's arrest, it is important to recall that an arrest consists of the actual seizure or touching of a person's body with a view to detention. The pronouncing of words alone can constitute an arrest if the person submits to the request. A power of arrest is found in a range of federal and provincial law but for our purposes we are focused on the power that exists in the Criminal Code.
As members can imagine, there are substantial differences between the power of police and that of a citizen to make an arrest under the Criminal Code.
Currently, under section 495, a peace officer may arrest without a warrant any person whom he or she finds committing a criminal offence, as well as any person whom he or she believes, on reasonable grounds, has committed or is about to commit an indictable offence.
What the courts have told us is that for an arrest to be valid on the basis of reasonable grounds, the arresting officer must personally believe that he or she possesses the required grounds to arrest, and those grounds must be objectively established in the sense that a reasonable person standing in the shoes of the officer would believe that they are reasonable and probable grounds to make that arrest.
In comparison, currently under section 494 of the Criminal Code, the private citizen may arrest those found committing indictable offences, those being pursued by others who have authority to arrest and those committing criminal offences in relation to property.
It is important to note that there is a legal duty under section 494 to deliver an arrested person to the police forthwith, which has been interpreted by the courts to mean as soon as reasonably practical under all the circumstances.
As members can see, there is a clear distinction between the power of arrest for the police and the power given to citizens. There are good reasons for these differences. The focus of Bill C-60 relates to the power of arrest of persons found committing a criminal offence on or in relation to property.
In this regard, the bill would expand 494(2) of the Criminal Code to permit a property owner or a person authorized by the property owner to arrest a person if he or she finds the person committing a criminal offence on or in relation to his or her property, not just at the time when the offence is being committed, which is the current law, but also within a reasonable time after the offence is committed.
It is essential to ensure that the proper balance is maintained between citizen involvement in law enforcement and the role of the police as our primary law enforcers.
To this end, the new measures will include the requirement that before an arrest can be made at some time after the offence is committed, which is the expansion the bill provides for, the arresting person must believe on reasonable grounds that it is not feasible in the circumstances for a peace officer to make the arrest instead.
The intention behind this last requirement is to ensure that citizens use this expanded power of arrest in cases of urgency. Citizens must turn their mind to whether the police are able to make the arrest, which is a far preferable circumstance. However, if people reasonably believe that the police will not be able to respond in time and make the arrest, property owners would be authorized to do it themselves.
The courts are familiar and comfortable with assessing the reasonableness of beliefs and would consider each case on its merits. In practical terms, the court may choose to look at such factors as the urgency of the situation, the safety of the people involved and the location of the incident, whether adequate information to identify the suspect was available and perhaps even the past conduct of the suspect.
In a nutshell, what is the change in the law? I would summarize the essence of the reform in the following way. Under the current law, if people find someone committing a criminal offence, they are only allowed to arrest him or her at that time. Under the proposed change, the arrest can take place later, within a reasonable time of finding the person committing the offence, as long as there are reasonable grounds to believe a police officer cannot make the arrest.
Members may ask what a reasonable period of time is. The phrase is not defined in the bill. The intention behind the phrase is to allow the courts, on a case by case basis, as they have done in so many instances, to examine the facts and circumstances and to make a determination on whether the time was reasonable in that particular case. The courts would likely turn to such factors as the length of delay, the conduct of the suspect and the conduct of the arrester, among other things. Imposing a rigid time limit on an arrest, for example an authority arrest within 12 hours would not be sound policy. The law must provide flexibility, but at the same time, build in safeguards, as Bill C-60 does.
Some may argue that this reform encourages vigilantism. I would completely disagree with that. The bill requires that a person witnesses an offence being committed and provides a degree of flexibility in terms of when an arrest can be effected for that offence. The bill does not change the amount of force that can be used in making an arrest. In short, people must continue to act responsibly.
This reform is being advanced because we have been hearing clearly from Canadians that limitations on citizen's arrests require change. There have been well publicized cases of individuals being charged and prosecuted for citizen's arrests that occurred shortly after an offence was witnessed. The government's goal is, therefore, to provide a balanced extension of the period of time to make an arrest.
Finally, for greater certainty, the reforms specify that the existing requirements in relation to the use of force in effecting arrests, which are provided for under section 25 of the Criminal Code, apply to citizen's arrests. I think that is only reasonable. There is no change to the rules regarding how much force can be used to make a citizen's arrest. An individual who makes a citizen's arrest is, if he or she acts on reasonable grounds, justified in using as much force as necessary for that purpose.
It is important to highlight that a person making an arrest is never justified in using force intended or likely to cause death or grievous bodily harm unless he or she believes on reasonable grounds that it is necessary for self-preservation or for anyone under his or her protection from death or grievous bodily harm.
These legal standards have been in place for a long time and continue to reflect appropriate policy today. This reform and our discussions of it in this place give us an opportunity to speak directly to Canadians. In this regard, I would like to say that citizen's arrests made without careful consideration of the risk factors may have serious unintended physical consequences, as well as legal consequences for those involved.
When deciding if a citizen's arrest is appropriate, people should consider whether a peace officer is available to intervene, whether their personal safety or that of others would be compromised by attempting the arrest, whether they have reasonable belief regarding the suspect's criminal conduct and identity, and whether they can turn over the suspect to the police without delay once an arrest is made.
In developing these citizen's arrest reforms, we consider a number of options. We examine private members' bills currently before this place as well as the laws of other jurisdictions and certainly the representations that are made to me and to the government on this issue. I submit that we have taken the elements of all these efforts and have developed a proposal which makes sense to Canadians.
I would now like to turn the defence of property contained in the bill. The government decided to couple reform with the defence of property with citizen's arrest reforms because there is a logical and factual connection between the two.
Consider the example of a property owner who sees a theft taking place on his or her property. In this situation, he or she could attempt a citizen's arrest if the desire was to capture the thief so he or she could be charged and prosecuted. However, the person could also desire to get the suspected intruder off the property, without intending to make the arrest. In the latter case, the use of force by the property owner could be justified by a claim of defence of property.
The defence of property, like any defence, is a claim made by a person who is alleged to have committed a criminal offence and who asserts that he or she should not be held responsible for that alleged offence because of some countervailing policy. Defending one's property from a threat is just the kind of circumstance that might justify otherwise criminal conduct, such as the use of force against a would-be thief.
Our Criminal Code, since its inception in 1892, provided a defence for the use of force to protect one's possession of property. However, one of the unfortunate realities about the defence is the way it is worded in the code. There are five separate provisions, sections 38 to 42, of the code that could potentially apply to a defence of property circumstance. The provisions create a distinct defence depending on the precise circumstances, differentiating between types of property and the hierarchy of claims to the property as between the possessor and the person seeking to interfere with the property. They are extremely detailed and, in many cases, overlap with each other. This approach to the Criminal Code is well over a century old and does not meet the needs of Canadians today.
The idea behind the defence of property is simple. A person should not be held criminally responsible for the reasonable use of force to protect property in his or her possession from being taken, destroyed, or trespassed upon.
We cannot find many of these words in the law itself. However, we can find many other words which, rather than help to set out this idea, describe narrow subsets of it. This means that Canadians, including police, prosecutors, judges and ultimately juries, must consider too many words and words which overlap with each other to arrive at what, in essence, is a rather simple idea.
Bill C-60 will demystify and clarify these waters.
The defence of property reforms contained in the bill would replace five separate provisions with one simplified provision that captures the essence of the defence, while providing the same level of protection as the existing law and with some modest enhancements.
There are some essential property-related concepts that must be retained, such as the idea of peaceable possession of property. Because different people can have independent claims to property and because the defence must, to some degree, incorporate notions borrowed from property law, the defence must have some technical components.
One enhancement is that a defence could be raised as a defence to any type of act that otherwise would be criminal. The law justifies the use of force in defence of property, which is basically assaultive behaviour against the property trespasser.
In recognition of the fact that people might engage in other forms of otherwise criminal activity to defend their property, such as discharging a weapon into the air to scare away the trespassers, Bill C-60 would allow the defence to apply so long as the actions are reasonable in the circumstances.
Finally, the reform on defence would clearly deny its application in the cases of lawful police action, such as the execution of a search warrant.
The new law of property, like the current law, does not put any express limits on what can be done to defend property. However, it is absolutely essential to note that courts have unequivocally rejected the use of intentional deadly force in defence of property alone and have stated many times that deadly force cannot ever be justified where human life is in jeopardy.
Some property-related conflicts do pose a risk to human life, such as home invasions, and deadly force may be justified in these circumstances.
This brings me to the law of self-defence.
Like the defence of property, the self-defence provisions were enacted in Canada's first Criminal Code in 1892 and have remained largely unchanged since that time. Like the defence of property, the law governing self-defence is set out over several separate provisions that describe situation-specific defences which overlap or conflict with each other, depending on the facts of a particular case.
I would submit that this complexity in the law cannot remain, especially when we are delineating the legal tests to be used for people using force in self-defence.
The complexity of the law makes it extremely difficult for the police to assess whether charges should be laid, causes trial counsel to have to devote time and energy to making arguments about which version of the defence should apply and poses challenges for judges on instructing juries how to apply the law. We can only imagine what juries think when the law is read to them.
Described in a general way, the proposed reforms would replace all of the existing defences with a single, general test for the defence of the person. In essence, people would be protected from criminal responsibility if they reasonably believe that they or another person are being threatened with force and they act reasonably for the purpose of defending themselves or another person from that force.
The reforms would also include a list of factors the court could consider in determining whether the person's actions were reasonable, such as a pre-existing relationship between the parties, including any history of violence, and the proportionality between the harm threatened and the response.
The list of factors codifies well-recognized features of many self-defence situations and will help guide judges and juries in applying the new law.
Consistent with the present law and for sound policy reasons, the defence would not be available where the person would be responding to a peace officer or other person who would be acting lawfully for a law enforcement purpose, such as when a person is arrested.
I am pleased to report that the proposed reforms on self-defence are consistent with those agreed to in 2009 by federal, provincial and territorial ministers responsible for justice based on the collective work of their officials. These reforms also respond to calls for simplification by many criminal justice stakeholders.
The citizen's arrest reforms extend the time in which an arrest can be made for an offence committed on or in relation to property. There is a real need in doing so to keep a clear distinction between the powers of the police and those of citizens. Police officers are rightly cloaked in the duty to preserve and maintain the public peace. They are our first and foremost criminal law enforcement body and with this reform, they continue to be so.
With regard to the defence reforms, at a practical level, very few Canadians would be able to read the many existing provisions and understand what the law allows. The law should be accessible to Canadians, and these reforms will help accomplish that goal.
Bill C-60 represents a responsible expansion of the citizen's power of arrest as well as a simplification of the law relating to the defence of persons and property. I urge all members to support this law and, in doing so, support the calls for reform made by law-abiding Canadians.
February 28th, 2011 / 3:50 p.m.
Acting General Counsel, Criminal Law Policy Section, Department of Justice
Is it possible for a judge to simply adopt the wording of the condition? It is possible, but the condition as proposed by Bill C-54 also says “in accordance with conditions set by the court”. So number one, it's built into the condition.
Number two, you're quite right in terms of looking to what's in section 161 right now, which is only a condition against using a computer system for the purpose of communicating with a young person. That condition was added in 2002 when the Internet luring offence was created, because that offence was addressing the use of the means, the computer system, to communicate with a young person.
But what Bill C-54 recognizes is that offenders use the Internet computer systems for all sorts of reasons. Yes, they use it to communicate directly with a young person, and we catch that already, but they use it also to offend, in their offending pattern, whether it's to access child pornography, for example....
So the idea with Bill C-54 is to require a court to turn its mind to this each time it is sentencing a person who is convicted of one of these child sex offences and to consider whether in that instance, with the offender before them, given the nature of the offending pattern and the conduct before the court, there should be a restriction on that individual's access to the Internet or other technology that would otherwise facilitate his or her reoffending.
Courts right now do this as a matter of practice with, for example, probation orders. What the offender may do in that situation, for example, is to say, “I need to have access to the Internet for my job because my job is this...”. So the court routinely will build into that. Again, often it's under supervision determined by the probation officer--or they can designate another adult who is aware of the individual's offending history--to ensure there's adequate supervision.
Could more be provided to give greater direction to the court? I guess the concern is that the more specific you are, the greater the risk you might leave something out. The intention was to leave this in the hands of a sentencing court to determine what's appropriate in the circumstances, with submissions by the crown in terms of how you better protect the community from this offender and also by the defence counsel in terms of what's needed in that specific instance.
February 17th, 2011 / 10:30 a.m.
Vic Toews Provencher, MB
Well, I think it is very important, because I believe white-collar criminals are deterred, to a very great extent, by heavy sentences. Many of these individuals are well educated and sophisticated, and they play the odds on this. And if the odds are that you're going to get a year or two in prison for stealing $100 million, if you could get away with a good chunk of that, isn't it worth playing the odds?
In that respect, you have to be very clear. We have to understand that has a very big deterrent effect in the context of white-collar crime.
I appreciate the support the Bloc has given us on C-59. I think they see exactly the nature of what white-collar crime is.
December 8th, 2010 / 4:20 p.m.
Director General, Citizenship and Multiculturalism Branch, Department of Citizenship and Immigration
Thank you, Mr. Chair, and thank you for the invitation to appear before you today.
My name is Andrew Griffith. I am the director general of the citizenship and multiculturalism branch, as you mentioned, and I'm accompanied by my team, Nicole Girard and Alain Laurencelle.
I am pleased to be here to discuss Bill C-467, a private member's bill.
Over the course of the next few minutes, I would like to briefly review the changes made in the Citizenship Act of 2009, which implemented a first-generation limit on citizenship for those born abroad, and I will briefly describe what Bill C-467 proposes in relation to those changes. I will also outline some changes that we believe are needed to ensure the current bill achieves its intent.
Let me begin by talking about the changes that were made to the Citizenship Act in 2009. These changes gave a restored citizenship to most “lost Canadians”, persons who lost or never had citizenship.
Also introduced at this time was a first generation limit to citizenship by descent for those born abroad. The intent of this limit was to protect the value of Canadian citizenship for the future and to ensure citizens have a connection to Canada.
These changes meant that children born to Canadian parents in the first generation outside Canada would be Canadian at birth only if one parent was born in Canada, or one parent became a Canadian citizen by immigrating to Canada and later being granted citizenship, or naturalized.
These changes also include an exception to ensure that children born or adopted outside Canada to a parent serving abroad with the Canadian armed forces, the federal public administration, or provincial public service would be citizens, even if they were born outside Canada, in the second or subsequent generation. However, like all children born outside Canada to a Canadian parent, children of crown servants cannot pass on citizenship to children they might have or adopt abroad as a result of the first-generation limit.
Other countries with a first generation limit, like the United Kingdom and New Zealand, have dealt with this issue differently by ensuring that children born abroad to crown servants are able to pass on citizenship to their children born or adopted abroad. This is what Bill C-467 seeks to do.
Bill C-467 proposed to treat children born abroad or adopted outside Canada by crown servants and Canadian Forces personnel as children born in Canada, such that they would be able to pass on citizenship to any children they may have or adopt abroad. The government fully supports the intent of this bill in that it recognizes and values the strong contributions, commitment, and sacrifice of crown servants working abroad and of their families.
Crown servants, including our military, work to serve Canadians abroad. Crown servants serving abroad demonstrate ongoing attachment to Canada in several ways.
First, they are considered residents of Canada.
Second, crown servants pay Canadian taxes while serving abroad.
Third, they rotate regularly back to Canada. This is different from the situation of Canadian expatriates who in many cases are not considered residents of Canada, do not pay Canadian taxes, and may or may not regularly rotate back to Canada.
All of these things demonstrate a strong ongoing connection to Canada.
The government does, however, have concerns with the bill, as it is currently drafted, since it does not achieve its intended objective and would have unintended consequences. I now want to briefly outline these concerns.
As I have said, the intent of Bill C-467 is to enable the children of crown servants to pass on citizenship to any children they have or adopt outside Canada. As currently drafted, however, it does not enable the children of crown servants to pass on citizenship.
At the same time, the bill removes the section of the act that currently provides an exception to the first-generation limit for children born abroad in the second and subsequent generations. Effectively, this would deny citizenship to the children of crown servants in situations where the crown servant parent was also born abroad to a Canadian parent.
The bill also poses problems with respect to adopted persons. Specifically, the bill proposes to confer citizenship automatically to children adopted abroad by crown servants who are born or naturalized in Canada, without regard to the international obligations and requirements under the current law.
The current act already allows anyone who is born abroad and adopted by a Canadian parent who was born in Canada, whether or not that parent is a crown servant, to apply for a grant and become a citizen. The criteria for such a grant respect the international obligations that are there to protect the best interests of the child: for example, to protect against child trafficking and to respect provincial jurisdiction on adoptions.
The problem is that under Bill C-467, children adopted abroad by crown servants would no longer need to apply for a grant in the current manner, meaning they would no longer be subject to the safeguards aimed at protecting the best interests of the child.
For the reasons I have just outlined, Bill C-467 does not achieve its intended objective and would have negative unintended consequences.
The changes, however, that would be required to ensure the benefits of Bill C-467 are achieved would be relatively minor. The intent of the bill could be achieved by expanding the current exemption to ensure the children of crown servants, including the Canadian Forces, like children born in Canada, would be able to pass on citizenship to any children they have or adopt outside of Canada. Recognizing their sacrifice, commitment, and strong connection to Canada, there should be no questions about the citizenship of their children, no matter where they are born.
Just to add to this, Mr. Chairman, in June 2010, of course, as people know, the government did introduce Bill C-37, the Strengthening the Value of Canadian Citizenship Act. This bill contains a number of amendments that would strengthen the process of applying for citizenship, improve measures to address citizenship fraud, and streamline the revocation process.
Specifically, Bill C-37 proposes to: add legal authority to regulate citizenship consultants and to crack down where they help people gain citizenship fraudulently; increase penalties for fraud; strengthen residency requirements to require a physical presence; improve the government's ability to bar criminals from becoming citizens; and ensure the law supports the implementation of the first-generation limit.
Similar to Bill C-467, Bill C-37 also proposes changes to the current crown servant exception to the first-generation limit. Consistent with the objective of Bill C-467, the proposed changes to the crown servant exception in Bill C-37 would ensure that the children of crown servants serving abroad are not disadvantaged by their parents' service to Canada and are able to pass on citizenship to their children born or adopted abroad.
Thank you again for the opportunity to speak before you. I would be happy to take any questions you may have.
December 6th, 2010 / 3:40 p.m.
Stephen Woodworth Kitchener Centre, ON
I do want to say that I support the amendment that we should be dealing with this on the basis of members rather than parties, but even if the motion were amended in that fashion, I would still oppose the motion. Among other things, I don't think that five minutes is an adequate period of time, but I'll reserve those comments.
I would like first of all to mention that, as I understand the committee structure, although clearly we try to maintain solidarity with our caucus colleagues, we are here as individuals. Although we might try to work out how we're going to do things, it's extremely problematic to sit down and figure out that person A is going to speak to this point, person B to that point, and person C to this point.
In point of fact, we all have different ways of expressing ourselves, and we all have a valuable contribution to bring, in my opinion. It is, in a way, an infringement upon our rights as members that we should be forced by the motion before us, without the amendment, to be speaking as a bloc. In fact, there are those who would say that we shouldn't even always vote as a bloc. To have to speak as a bloc is nearly impossible.
I also want to say that there is some relevance here to what happened in the House regarding Bill S-216. It may be a good illustration of how sometimes parties and people don't apply themselves consistently.
I recall the closing hour of debate on Bill S-216. Quite frankly, the NDP member spent a great deal of time, instead of speaking about Bill S-216, speaking about Bill C-311, and clearly wasn't even adhering to even the smallest modicum of relevance in that debate, but was simply talking, I suppose, to fill time or maybe to hear her voice. I won't speculate as to her motives, but in any event it was to me quite distressing, as the mover of Bill S-216, to hear time being used on that debate to talk about Bill C-311. Of course, then it was necessary for me to respond to those comments on Bill C-311, and it just derailed the whole debate.
In the interest of maintaining our rights and privileges as individual members, I think we should be dealing with this on a per member basis.
The other thing I'd like to say, Mr. Chair, is that it has occurred to me from time to time that sometimes members--and I won't point the finger at just the opposition--think debate is unnecessary because they come to a table like this with their minds made up. Sometimes I'm as guilty as anyone of coming in with my mind made up.
Even if we have our minds made up, Mr. Chair, I think it still behooves us to stop, listen, let others speak, and hear what they have to say. Who knows? Some minor miracle may occur and we might change our mind along the way. If we come at it from the point of view that our minds are made up, well of course, then, even spending 60 seconds a person to let your opponent speak is too much, because we already know what we're going to do and we might as well move right to it.
In any event, I mentioned that even given the current amendment, I would not be able to support this motion. Quite frankly, I find the motion offensive generally. In an effort to try to improve it a little bit, I would like to propose a subamendment to the existing amendment that is on the floor, and that is to lengthen the time to 10 minutes per person.
May I speak to that amendment, Mr. Chair?
November 25th, 2010 / 3:35 p.m.
Joseph Groia Lawyer, Groia & Company, As an Individual
These are interesting, challenging, and even dangerous times, I would say, in the Canadian capital markets. Never in my 30 years of being involved in the enforcement business of securities offences have I seen as much uncertainty as we're facing today.
I'd like to address just two aspects of Bill C-21. The first is the mandatory sentencing provisions for fraud. The second is restitution provisions.
About the mandatory sentencing provisions, I have three observations. First, they are not necessary. Second, they won't do what you hope they will do. Third, they are counterproductive. I say that having a background as a former head of enforcement at the Ontario Securities Commission and also now as a lawyer who represents both victims of fraud and those sometimes accused of fraud.
Second, I'd like to say a word about the restitution provisions. I believe they are a step in the right direction, but, like Mr. Caylor, I don't think they go far enough, and I would ask this committee to consider perhaps going further than is currently proposed in this bill.
Mandatory sentencing provisions for fraud are not necessary, because the cases you have heard about have all resulted in jail sentences far in excess of a two-year minimum. Mr. Jones was convicted in February of 2010 and received a sentence of 11 years. Vincent Lacroix of Norbourg was convicted in 2009 and received, effectively, a sentence of 18 years. In perhaps one of the most well-known and publicized prosecutions in the last decade, Mr. Drabinsky and Mr. Gottlieb, of Cineplex, received sentences of seven years and six years.
I can tell you that my experience is that judges and prosecutors take white-collar fraud very seriously. Although we call this the Standing up for Victims of White Collar Crime Act, I can tell you that every day in my practice prosecutors are doing exactly that, the best they can and with the resources they have.
Second, a mandatory jail sentence will not solve the problem. If we want to improve the protection of investors in Canada, we need to look at provisions and approaches to this problem that are much more comprehensive than those found in Bill C-21.
I'm encouraged by the efforts of Parliament to move forward with a national securities commission, not because I care about the filing of prospectuses or the raising of capital, but because I think we're long overdue for the introduction of a national enforcement agency that is concerned with the successful detection and prosecution of white-collar crime across the country. I hope that a national securities commission will do what IMET has been unable to do, which is to bring to bear specialized resources that will protect Canadian investors.
Thirdly, mandatory minimum sentences are counterproductive. Chief Justice McRuer said 58 years ago that a mandatory sentence “tends to corrupt the administration of justice by creating a will to circumvent it”. The danger you will need to consider as a committee is that the application of mandatory sentences will do exactly the opposite of what you hope to accomplish.
In the United States of America, which is perhaps the genesis of mandatory sentences and approaches to sentencing guidelines, they are moving away, under the Obama administration, from mandatory sentences and moving towards a Canadian style of system, where we attempt to have justice fit the crime, the victim, and the criminal. I would say that a mandatory approach to this problem is not the solution, and indeed, I worry that if you go forward on that basis, you will make it worse rather than better.
Secondly, the restitutionary powers that are being proposed in many respects are simply an adjunct to what is already required under the Criminal Code. When we look at restitution, there is no more important aspect, as Lincoln said, than ensuring that victims of crime are compensated as a result of their losses. We are talking about the hard-earned savings of families and of Canadians who can't afford to have their college fund or retirement fund stolen by white-collar criminals.
The difficulty, of course, is that by the time law enforcement gets there, we often see that the money is long gone. It resides in secrecy havens or resides elsewhere where it will never be found. When we talk about restitution, what we need to be talking about is a much broader approach to looking at how we compensate injured investors. Saying to the criminal that as part of her sentence she is going to have to pay the money back sounds good, but is completely ineffective.
What I think we have to look at, if we're interested in approaching this problem on a more sympathetic and a more effective basis, is how we get self-regulatory agencies and securities commissions, and other deep pockets that may have been involved in authorizing, permitting, or acquiescing in the activities of the criminals, to contribute towards a solution. I would encourage you, when you look at this bill, to ask what really we want to accomplish, and whether or not we get there under Bill C-21.
Finally, for those who might say that this is an approach to the problem that is soft on crime, my answer would be no, it's an approach to the problem that is smart about policing crime.
Thank you very much. I'd be happy to entertain questions.
November 25th, 2010 / 10:40 a.m.
Kelly Block Saskatoon—Rosetown—Biggar, SK
Thank you, Mr. Chair.
Thank you as well to our witnesses for coming.
I want to direct the short time I have to Ms. Downie.
As was mentioned by my colleague, Bill C-32 was developed after one of the largest consultations in Canadian history on copyright reform. Our government listened to stakeholders from coast to coast to coast, and we believe Bill C-32 represents what we see as a balance between creators and users.
Could you share a bit about what was heard at those consultations and how the bill addresses what was heard?
November 3rd, 2010 / 3:40 p.m.
David Plunkett Chief Trade Negotiator, Bilateral and Regional, Department of Foreign Affairs and International Trade
Thank you, Mr. Chair, for the opportunity to appear again before this committee to speak to Bill C-46, an act to implement the Canada-Panama free trade agreement and parallel agreements on labour and the environment.
You've introduced my colleagues at the table. If needed, I have other colleagues here with me to fill in some holes here and there.
Normally for these sorts of exercises we like to bring forward the actual chief negotiator of the agreement itself. In this case it was our colleague Cameron MacKay, but he was posted over the summer, so you'll have to put up with us. We'll try to address your questions as best we can.
Before I begin I'd like to report that we have received word from our embassy in Panama that the Panamanian government has just completed its approval process for the free trade agreement, thereby passing this agreement into law in that country. I think this is a positive development that has literally just occurred.
As this committee has seen, Canada is pursuing an ambitious trade agenda to open more doors for Canadian companies in the Americas and around the world. Panama is another country where, by deepening our commercial and social relationship, Canadians stand to gain.
Panama is a like-minded country with a strategic position in the global trading system due to its location, connectivity, and role as a global logistics hub.
According to Export Development Canada, as a link between the Atlantic and Pacific Oceans, Panama today processes approximately 5% of global trade. Panama has also had one of the fastest-growing economies in the Americas.
In 2008 its real gross domestic product growth was 10.7%. It posted positive growth in 2009, during the economic downturn, and Panama's real GDP is expected to grow further for 2010.
Canadian companies are aware of Panama's potential and some have already been active in this market. This activity reached the point where on September 23 of this year Export Development Canada decided to open a regional office in Panama to more effectively facilitate the growing levels of trade and investment between Canadian and Panamanian companies.
In 2009 two-way trade in merchandise trade between Canada and Panama totalled $132 million. This current figure may not be large compared to other partners, but that does not mean that it is not significant or that it cannot become more substantial in the future.
In the second quarter of 2009, Canada's merchandise exports to Panama were valued at approximately $22 million. In the same time period of this year, our exports to Panama were valued at approximately $60 million. So that's a threefold increase.
Key Canadian products driving our trade with Panama include machinery, motor vehicles and parts, pharmaceutical equipment, and pulse crops. Once the Panama agreement is in place, trade in these and other products will become easier for Canadian companies. For example, once implemented the agreement will eliminate current Panamanian tariffs on vehicles of up to 15%, industrial and construction machinery of up to 15%, pork products of up to 70%, wood products of up to 15%, and potato products of up to 81%.
In fact, this agreement will eliminate tariffs on 99.9% of recent non-agricultural imports from Canada and 94% of agricultural imports. Panama currently maintains tariffs averaging 13.4% on agricultural products, with tariffs reaching peaks as high as 260%.
Canadian investors will also see benefits from the implementation of a Panama agreement. It is already an established destination for Canadian direct investment abroad, particularly in areas such as banking and financial services, construction and mining. The stock of Canadian investment in Panama reached $93 million in 2008.
Some of the companies with existing presence in this market include CARIS, which is a geospatial software firm based out of Fredericton; McGill University; Scotiabank; Inmet Mining; SNC-Lavalin; and Hatch Ltd., an Ontario consulting company specializing in engineering and construction project management.
The current investment figure is also expected to grow in the years ahead, in part due to the many infrastructure projects planned by the Panamanian government and the private sector.
Once implemented, the Canada-Panama Free Trade Agreement will set up a stable legal framework, ensuring that Canadian businesses can invest with predictability in Panama. It will ensure the free transfer of investment capital, and protect against expropriation. It will give investors access to transparent, binding and impartial dispute settlement processes.
In short, this agreement provides Canadian investors in Panama a higher level of stability, predictability, and protection for their investments.
Canada's service sector also stands to benefit from a free trade agreement with Panama. Right now Canadian service exports are approximately $8 million a year, with room to grow. This figure is being propelled by Canadian financial engineering, mining and petroleum extractive services, construction capital projects, and environmental services. This agreement will provide service providers like these with a secure, transparent, and rules-based trading environment.
In addition, in keeping with Canada's approach to free trade agreements, the Canada-Panama Free Trade Agreement also covers environmental and labour aspects of economic integration through parallel agreements on labour cooperation and the environment. These are important agreements, and they contain strong obligations which clearly demonstrate that trade liberalization can go hand in hand with labour rights and the environment.
The members of this committee have no doubt already heard about Panama’s current canal expansion project. This $5.3 billion expansion project is expected to be completed by 2014, and it is estimated that the cargo flow will be boosted by roughly 35% through 2025.
With the Panamanian government investing in its country’s growth and strategic importance, procurement opportunities were another key driver for the negotiation of this agreement. I am pleased to say that the government procurement provisions in the agreement guarantee that Canadian suppliers have non-discriminatory access to a broad range of government procurement opportunities, including those under the responsibility of the Panama Canal Authority.
Along with the canal expansion, the Panamanian government has recently announced a five-year, $13.6 billion strategic investment plan. Under this plan, $9.6 billion will be allocated to infrastructure investments and other economic programs designed to stimulate further growth. Some of the projects the government is looking to undertake include airport construction, expansions, and upgrades; a new water treatment plant; power generation projects; agriculture irrigation systems; and a $1.5 billion metro system.
With metro systems and other projects similar to these, Canadian companies have proven to be world leaders in infrastructure.
These projects offer a number of opportunities for Canadian investors and service providers, and the Canada-Panama Free Trade Agreement is one way to ensure that Canadian companies can compete on a level playing field for these opportunities.
There is stiff competition in this dynamic market. The U.S. has recently concluded a trade agreement in Panama, and many strong interest groups in the U.S. and Panama are eager to see it implemented.
Panama’s active trade agreement also includes partners such as the European Union and Colombia. The Panamanian government is currently exploring trade deals with the European Free Trade Association countries of Iceland, Switzerland, Norway, Liechtenstein, Peru, the Caribbean, Korea, and others.
Companies that conduct business abroad rely on a number of things. A few of these are access, security, transparency, predictability, protection, rules-based environments, and the ability to establish strong relationships before their competitors do.
In the case of Panama, Canadian companies have indicated that they want to increase their activity in this market. With the free trade agreement, we are looking to provide the elements they need to operate more effectively and take greater advantage of these opportunities.
By implementing this agreement, we not only contribute to the growth of a strategically significant country in Central America, but we help Canadian companies thrive and stimulate Canada’s overall economy.
Thank you. My colleagues and I will be pleased to take any questions.
October 19th, 2010 / 4:05 p.m.
Brent Rathgeber Edmonton—St. Albert, AB
Thank you, Mr. Chair.
Thank you, Mr. Minister, for your attendance here today. Thank you to your departmental officials, as well.
I would like to congratulate you, not only on this bill but on the government's entire history on the safe communities agenda. As you know, there is Bill C-16, ending house arrest, Bill C-21, ending the faint hope clause, and sentencing for fraud. And the list goes on and on.
Minister, I know that you frequently consult with interest groups that have an interest in these particular pieces of legislation. I'm curious, with respect to this bill that's before this committee, about who some of those interest groups might be and what they've been telling you about it and if there's any opposition. Quite frankly, I can't see any. I can't imagine why anybody would be opposed to this bill, but I might be wrong.