An Act to amend the Criminal Code (justification for detention in custody)

This bill was last introduced in the 40th Parliament, 3rd Session, which ended in March 2011.

This bill was previously introduced in the 40th Parliament, 2nd Session.

Sponsor

Scott Andrews  Liberal

Introduced as a private member’s bill.

Status

This bill has received Royal Assent and is now law.

Summary

This is from the published bill. The Library of Parliament often publishes better independent summaries.

This enactment amends the Criminal Code to provide that the detention of an accused in custody may be justified where it is necessary for the protection or safety of the accused’s minor children.

Elsewhere

All sorts of information on this bill is available at LEGISinfo, provided by the Library of Parliament. You can also read the full text of the bill.

Criminal Code
Private Members' Business

March 22nd, 2010 / 11 a.m.
See context

Liberal

Scott Andrews Avalon, NL

moved that the bill be read a third time and passed.

Mr. Speaker, it is a pleasure to speak to Bill C-464 in the House at third reading. Hopefully, today we will have our last hour of debate and have it shipped off to the Senate to carry on.

I would like to take a few minutes to explain the origins of how I decided to bring this bill forward. As a newly-elected member of Parliament in the last year and a half, I was overwhelmed by the amount of information that comes across a member's desk, the amount of paper and the number of causes and interests. It is hard to manage all of that, but I have sort of taken the view that I am going to look at anything that comes across my desk that relates to home.

I had an opportunity, shortly after I was elected in late 2008, early 2009, to watch a documentary. It was called Dear Zachary. It was produced by Kurt Kuenne. It was the story of a tragic incident that happened in Newfoundland and Labrador. I watched the documentary here in Ottawa. I knew the story, the individuals involved, and the details surrounding it. I was quite moved. It was an amazing documentary that told the story of David and Kate Bagby, their son Andrew, and their little grandchild Zachary.

After seeing the documentary, I knew where I was in the order of precedence on the order paper for a private member's bill. As I and my assistant, Mr. Ken Carter, who has helped me with this bill, left the theatre, I decided this was what I wanted to do my private member's bill on.

When we come to this place and look at private members' bills, I have said it before, we present private members' bills for one of two reasons. The first is to make a political statement, knowing that once it is introduced, it is for that reason and we are not going to go anywhere with it. The second is to actually make a difference. I truly believe that once members are elected, they come to this place to make a difference. That is when I decided I would introduce my private member's bill on detention in custody for bail reform.

The documentary Dear Zachary outlined the case of Zachary Turner and the tragic events around the baby's death. I will not go into it today because we have debated it previously and told the story in committee. I do not think we need to go there today. It was in memory of Zachary Turner that I introduced this private member's bill, to try to change our bail laws, to toughen them up a little, so that we could deny bail to protect minor children in the custody of the accused.

That was the story of Zachary and his tragic death. We heard testimony in committee from David and Kate Bagby and I will speak about those two amazing individuals momentarily.

We also heard other stories of tragic deaths from a group that came to testify before committee, the Canadian Resource Centre for Victims of Crime. Heidi Illingworth, the executive director, and Krista Gray-Donald, director of advocacy and awareness, appeared at committee. It was a group that I had not solicited and I did not know of, to be honest, until I realized they were coming before the committee in support of my bill.

They told a couple of other stories of crimes that could have been prevented if we had such information in our bail laws. I am going to read a couple more cases from their testimony. There were three cases they gave examples of that I had not heard of prior to them appearing before committee last week. The first story is the following:

Peter Lee of Victoria attempted to murder his wife in 2007. He was charged but granted judicial interim release despite a recommendation by police that he not be released by the courts. Conditions were imposed that required that he not have contact with his wife, yet in September 2007 he murdered his six-year-old son as well as his wife and her parents.

He did that while he was out on bail. The second is as follows:

In Cumberland, Ontario, in April 2006, Frank Mailly murdered his two sons, ages six and nine, his daughter, aged twelve, and their mother. He then burned down their home, with their bodies in it, killing himself in the process. He was not to have contact with Francine, but he had visitation rights to the children, and he committed these murders at the conclusion of one of their visits. Mailly had a long history of domestic violence and was on bail at the time he murdered his family.

In 2002, Lawrence Mends was released on bail in St. Catharines following an attempt to take the life of the mother of his child. When he returned to her home to attack her again, he wounded her and murdered their two-year-old son, Robert, stabbing him in excess of 20 times with a knife.

These were three examples that I had no idea about when I put my bill forward. They touched me as much as the story of Zachary Turner touched me. When we hear that the courts could have had the power to keep somebody in custody when they are charged with a serious crime so that they not be released on bail to protect minor children of the accused, that is what we decided to do.

With this bill, we put in bail reform under section 515 of the Criminal Code giving the courts the power to deny bail to protect minor children of the accused.

We did our research. We wanted to ensure this amendment was charter-proof. We could have made it much stronger, but then it would not have stood up to our Charter of Rights of Freedoms, which is important.

We did our research and then we came back with this amendment that all parties could live with, including all parties in this House. After consultation, I mentioned it to the minister and we made it a little bit stronger by defining minor children.

At committee there was an amendment proposed by the government that said “all children under the age of 18”. That gave it even more clarity and is concise within the Criminal Code. We had an amendment at committee with all party support. That is why we are back here today for third reading in this House.

I am very pleased that we have managed to move this along quite quickly. I have been told that private members' bills sometimes do not even see the light of day. Someone who had done some research for me said only 1% of private members' bills actually receive royal assent. So I am quite excited that in my first term here in Ottawa I have managed to get a private member's bill this far. We do that by building consensus, doing the research, and having something that is practical and can realistically be approved.

This is about two amazing people. There are two amazing people whom I have met during this process, David and Kate Bagby. I did not know Mr. and Mrs. Bagby. I knew of them and of the circumstances around the deaths of their son and grandson.

I cannot describe what these two amazing individuals have gone through to be at this stage here with me today. They have seen the death of their son, the death of their only grandson, and they have taken up this cause over the past five years. They have seen many things transpire in Newfoundland with child welfare. Dr. Markesteyn conducted an inquiry that recommended many changes in our provincial child welfare.

I think that is another cause that we need to look at. That was provincial in nature. We had that report and often reports gather a lot of dust in this place. The provincial government now needs to take that report out, look at the recommendations, and see what has been acted upon in toughening up and improving our child welfare laws in Newfoundland and Labrador.

Then the other part was the bail reform issue. That is when they came to me and asked if somebody could take this cause up to get this bail reform before the House of Commons, which we have done. Senator Tommy Banks will be my sponsor when this bill goes to the Senate. He saw the documentary when it was in Alberta.

These two amazing people, David and Kate, have gone through a lot. I really thank them for the work they have done with me in preparing this bill. They do not like the word “closure” because there is no closure for them, having lost a son and a grandchild. They have taken this on and have tried to make laws better in our country, so that no other child, parent or grandparent will have to go through what they have gone through.

I thank David and Kate for being my inspiration in bringing this forward. This is about them.

That is the story of my bill, Bill C-464. It is a pleasure to be here to introduce this important legislation. I look forward to listening to the debate and answering any questions and comments members may have on this particular bill. I look forward to sending it to the Senate at the end of business today.

Criminal Code
Private Members' Business

March 22nd, 2010 / 11:15 a.m.
See context

Mississauga—Erindale
Ontario

Conservative

Bob Dechert Parliamentary Secretary to the Minister of Justice

Mr. Speaker, first of all, I would like to thank the hon. member for Avalon for bringing this bill before Parliament.

I am privileged to speak on this important bill today, Bill C-464, An Act to amend the Criminal Code (justification for detention in custody). The proposed amendment adds only a few words to the Criminal Code, but they are very important words. They are words that emphasize the importance of protecting some of our most vulnerable citizens, our children.

Bill C-464 would add the words “any person under the age of 18 years” to paragraph 515(10)(b) of the Criminal Code. Thus the provision would read that the detention of the accused in custody is justified:

where the detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, or any person under the age of 18 years, having regard to all of the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice; and

This means that when a judge is determining if an accused person should be released on bail pending his or her trial, the judge is to specifically consider the safety of children. Currently courts assess the safety of children when considering the safety of the public under paragraph 515(10)(b). This amendment serves to highlight the importance of children's safety being expressly reviewed at the bail hearing, a very important juncture in criminal proceedings.

This bill was first introduced by the member for Avalon on October 22, 2009. It then received general support during the second reading on December 4, 2009, and a government amendment was unanimously supported by the Standing Committee on Justice and Human Rights. The speed by which the bill has moved through the House and the consensus it has generated confirms that it will be a valuable contribution to the Criminal Code.

I would like to take a moment to speak of the two witnesses who appeared before the justice committee. Last week, David and Kathleen Bagby appeared to assist the committee in its consideration of Bill C-464. As we all know, the tragic and senseless loss of their son, Andrew, and their grandson, Zachary, is what propelled the Bagbys to seek legislative reform. At the committee hearing, they spoke of their heart-wrenching loss and also clearly articulated their desire to prevent a similar tragedy from befalling another family. The Bagbys found the courage to use their unimaginably painful loss as fuel for positive change. I thank them for appearing before the justice committee, and I thank them for their efforts to prevent other children from being harmed.

As mentioned, the justice committee unanimously supported the private member's bill as amended. The government moved an amendment to improve the bill by making it less restrictive. Instead of only referencing the “children of the accused” as initially proposed, the government moved an amendment to reference all persons under the age of 18. When determining if an accused person should be released from custody, courts will be expressly reminded to consider the safety and protection of all children affected by the accused person's release. Any danger presented by the accused in regard to any child, be it a partner's child, a neighbour's child or a biological child, must be considered before he or she is released into the community.

The Criminal Code sets out the bail, or judicial interim release, procedure and the grounds for detention of an accused. When police officers believe there are reasonable grounds not to release an accused, they are required under the law to bring them before a judge or justice of the peace within 24 hours or as soon as possible.

Subsection 515(10) of the Criminal Code sets out specific grounds to justify the pretrial detention of an accused. Under what is commonly referred to as the “primary ground”, bail can be denied when detention is necessary to ensure that the accused does not flee from justice and appears before the court when required to do so.

Under the “secondary ground”, the ground Bill C-464 seeks to amend, bail can be denied where it is necessary to protect the public. For example, if there is a substantial likelihood that the accused will re-offend or interfere with the administration of justice, he or she should not be released.

Third, bail can be denied under the “tertiary ground”, when the court considers it necessary to maintain public confidence in the administration of justice.

The task of assessing an accused's risk at the bail hearing can be extremely challenging. The investigation may be ongoing and the information available to the courts may be incomplete. Our justices are asked to make very important decisions in a very short time frame and in a fair manner that respects the values entrenched in our Charter of Rights and Freedoms. This amendment, it is hoped, can assist them with their difficult task by specifically reminding them to consider the safety and protection of children.

Although this judicial interim release regime operates well, tragic incidents, while rare, do occur. Placing limits on an individual's liberty is clearly necessary when failure to do so jeopardizes the safety of the public and, most particularly, the safety of our children.

Child safety should be considered at all stages of a criminal prosecution, from the arrest to the sentencing of an accused. This amendment would ensure that bail decisions are made with the safety of the child at the forefront.

Bill C-464 is in line with this government's criminal law reform efforts. The Conservative government is committed to the safety and protection of Canadian children.

Just this month, the government proposed legislative amendments to strengthen the national sex offender registry and DNA data bank, measures that will provide greater protection for our children.

Furthermore, as highlighted in the recent Speech from the Throne, this government will also introduce legislation to increase penalties for sexual offences against children and will protect children from Internet luring and cyber abuse.

In the recent past, this government has introduced legislation that aims to protect children. For example, the Tackling Violent Crime Act places stricter conditions on dangerous and high-risk offenders and protects children from sexual predators by increasing the age of consent. We have also increased penalties for street racing and gun crimes and terminated house arrest for serious, violent offences.

Clearly, a strong criminal justice system alone is not sufficient. The criminal justice system and provincial child protection regimes intersect and overlap in many ways. Child protection is a complex, multi-dimensional issue that involves the ongoing commitment and collaboration of community members, practitioners and policy-makers from across Canada.

Bill C-464 is an important step, but it is clearly not the only step to be taken. We must continue to work with our provincial and territorial counterparts to develop ways to better protect Canadian children. It is an enormous but essential task.

All of us want Canada to be a safe, secure place for our children. They are our future and deserve our protection. Bill C-464 emphasizes the importance of courts considering the safety of children when making decisions about the pretrial release of an accused.

I urge this House to give this bill its full support.

Criminal Code
Private Members' Business

March 22nd, 2010 / 11:35 a.m.
See context

NDP

Peter Stoffer Sackville—Eastern Shore, NS

Mr. Speaker, I thank the hon. member for Avalon for bringing this initiative forward.

It can never be easy for family members to lose loved ones in any circumstances. However, when they are taken by the hand of violence, it must even more excruciating to live with that day to day. It is always remarkable when people can turn that sorrow into some positive action. We hear examples of that over and over again, not just in Canada but also in the United States and other areas around the world where people have lost loved ones but have decided to make the best of it they could under terrible circumstances.

We are very pleased that David and Kate approached our colleague from Avalon to add a particular clause to the criminal justice system that would in the end, hopefully, protect the interests of young people throughout this country.

Bill C-464 amends the Criminal Code to provide that the detention of an accused in custody may be justified where it is necessary for the protection or safety of the public, including any persons under the age of 18 years.

I am very pleased that our very formidable and very knowledgeable justice critic, the member for Windsor—Tecumseh was sitting on the committee at the time and heard the witness testimony and worked with the Conservatives, Liberals and Bloc Québécois to reach some form of unanimity to add this slight one paragraph to the Criminal Code to give judges even more opportunity when dealing with someone under bail consideration to outweigh those concerns with those of someone under the age of 18, especially our children.

For all of us who have children or those of us who have friends with children, we understand that they are our most precious resource. My wife and I are blessed with two beautiful daughters. Only in the deepest recesses of my mind can I even vaguely consider what it would feel like if anything ever happened to them. However, every single member of Parliament has had constituents who have lost loved ones and have come to them in some way or another. In fact, some members of Parliament have lost loved ones in various circumstances. It is always a testament to their stoicism and courage that they have had the ability to move right forward to ensure that the things that happened to their children will be addressed going forward.

That is why it is important to move this legislation quickly. That is why I am glad the hon. member sought me out to do a little switch here in order to get this thing done, so that David and Kate would be able to have, if anything, a better night's sleep knowing their tragedy has been turned into something positive so that future generations down the road may be protected from this particular situation.

We all know the tragic story now. There is no sense in repeating it. It would just bring a lot of heartache and tears to many people. However, we are very pleased that this tragedy can, in the end, be turned into something positive. In the end, if we can protect the innocents and children of our country, this legislation should be deemed worthy and be passed fairly quickly.

Again, I thank David and Kate Bagby for their stoicism and courage in all of this. I thank the hon. member for Avalon as well. I thank the hon. member for Windsor—Tecumseh for his support of this initiative through the committee. I thank all committee members for their work on this. I hope to see speedy passage of this bill. I would also encourage the Senate, under the leadership of Mr. Tommy Banks, to work on this bill and eventually get it enshrined into law to give our justices the opportunity to move this issue forward.

Business of the House

March 3rd, 2010 / 4:15 p.m.
See context

Liberal

The Speaker Peter Milliken

I would like to make a statement concerning private members' business. Standing Order 86.1 states that all items of private members' business originating in the House of Commons that have been listed on the order paper during the previous session shall be deemed to have been considered and approved at all stages completed at the time of prorogation.

In practical terms, this means that notwithstanding prorogation, the list for the consideration of private members' business established at the beginning of the 40th Parliament shall continue for the duration of this Parliament.

All items will keep the same number as in the first and second sessions of the 40th Parliament. More specifically, all bills and motions standing on the list of items outside the order of precedence shall continue to stand. Bills that had met the notice requirement and were printed in the order paper, but had not yet been introduced, will be republished on the order paper under the heading “Introduction of Private Members' Bills”. Bills that had not yet been published on the order paper need to be re-certified by the office of the Law Clerk and Parliamentary Counsel and be resubmitted for publication on the notice paper.

All items in the order of precedence are deemed to have been considered and approved at all stages completed at the time of prorogation. Thus, they shall stand, if necessary, on the order paper in the same place or, as the case may be, referred to the appropriate committee or sent to the Senate.

At prorogation, there were 11 private members' bills originating in the House of Commons adopted at second reading and referred to the appropriate committee. Therefore, pursuant to Standing Order 86.1: Bill C-290, An Act to amend the Income Tax Act (tax credit for loss of retirement income), is deemed referred to the Standing Committee on Finance.

Bill C-300, An Act respecting Corporate Accountability for the Activities of Mining, Oil or Gas in Developing Countries, is deemed referred to the Standing Committee on Foreign Affairs and International Development.

Bill C-304, An Act to ensure secure, adequate, accessible and affordable housing for Canadians, is deemed referred to the Standing Committee on Human Resources, Skills and Social Development and the Status of Persons with Disabilities.

Bill C-308, An Act to amend the Employment Insurance Act (improvement of the employment insurance system), is deemed referred to the Standing Committee on Human Resources, Skills and Social Development and the Status of Persons with Disabilities.

Bill C-309, An Act establishing the Economic Development Agency of Canada for the Region of Northern Ontario, is deemed referred to the Standing Committee on Industry, Science and Technology.

Bill C-310, An Act to Provide Certain Rights to Air Passengers, is deemed referred to the Standing Committee on Transport, Infrastructure and Communities.

Bill C-391, An Act to amend the Criminal Code and the Firearms Act (repeal of long-gun registry), is deemed referred to the Standing Committee on Public Safety and National Security.

Bill C-393, An Act to amend the Patent Act (drugs for international humanitarian purposes) and to make a consequential amendment to another Act, is deemed referred to the Standing Committee on Industry, Science and Technology.

Bill C-395, An Act to amend the Employment Insurance Act (labour dispute), is deemed referred to the Standing Committee on Human Resources, Skills and Social Development and the Status of Persons with Disabilities.

Bill C-442, An Act to establish a National Holocaust Monument, is deemed referred to the Standing Committee on Transport, Infrastructure and Communities.

Bill C-464, An Act to amend the Criminal Code (justification for detention in custody), is deemed referred to the Standing Committee on Justice and Human Rights.

Pursuant to Standing Order 97, committees will be required to report on these reinstated private members’ bills within 60 sitting days of this statement.

In addition, one private members’ bill originating in the House of Commons had been read the third time and passed. Therefore, pursuant to Standing Order 86.1, the following bill is deemed adopted at all stages and passed by the House.

Bill C-268, An Act to amend the Criminal Code (minimum sentence for offences involving trafficking of persons under the age of eighteen years). Accordingly, a message will be sent to the Senate to inform it that this House has adopted this bill.

As they are no longer members of this House, all the items standing in the name of Ms. Dawn Black, Mr. Bill Casey and Mr. Paul Crête will be dropped from the order paper.

Consideration of Private Members’ Business will start on Friday, March 5, 2010.

To conclude, hon. members will find at their desks an explanatory note recapitulating these remarks. I trust that these measures will assist the House in understanding how private members' business will be conducted in the third session. In addition, the table can answer any questions members may have.

Criminal Code
Private Members' Business

December 4th, 2009 / 1:30 p.m.
See context

Liberal

Scott Andrews Avalon, NL

moved that Bill C-464, An Act to amend the Criminal Code (justification for detention in custody), be read the second time and referred to a committee.

Madam Speaker, it is a pleasure to rise in this House today and speak to my first ever private member's bill.

The proposed amendments will be to the Criminal Code in respect of bail. If enacted, this will amend the Criminal Code to provide that the detention of an accused in custody may be justified where it is necessary for the protection or safety of the accused's minor children. The protection and safety of minors remaining in the custody of individuals charged with serious crimes may be considered during bail hearing proceedings.

We need to give the judicial system another tool to do its job. We must make it attentive to the necessity of protecting minor children while they are in the custody of individuals charged with serious offences. A decision to deny bail to the accused may be appropriate for the intended protection of the rights and safety of children who are in the custody of the accused.

Members may ask how did I get to this private member's bill. In the first year members are in Ottawa, they are lobbied on many different things and many causes that come to their attention. In late March, I received an invitation to attend a special screening of the documentary Dear Zachary for senators and members of Parliament. I was joined by Senator Banks and former member Mr. Bill Casey at that screening. I had an opportunity to meet the producer, Kurt Kuenne, for the first time. Listening to the documentary and to personal stories that I had been familiar with had a profound impact on me as an individual.

I also met Kate and David Bagby. They are two amazing people who have used their strength and determination to attract the attention of decision makers to the need to bring important change to the current bail legislation in Canada.

It was shortly after that documentary that I decided that my first ever private member's bill would try to advance the efforts of bail reform.

Members need to hear the story of where and how this came about. Most of us in Newfoundland and Labrador, and many across Canada, have heard the terrible story of the tragic deaths of David and Kate's son, Dr. Andrew Bagby, in 2001.

Dr. Bagby and his girlfriend, Dr. Shirley Turner, of Newfoundland were in a relationship. They had their troubles and the relationship broke off. Dr. Turner travelled back to her home, leaving David in Pennsylvania. She then drove back across the country, over 800 miles, and killed Dr. Andrew Bagby in a Pennsylvania park. She then went back to her home on the west coast of the United States, and prior to being charged for the murder, she was advised by her lawyer to spend time with her family in Canada. She went to Canada and ended up in her home province of Newfoundland.

She was then charged with the crime of murdering Andrew and faced extradition hearings. While going through the process of extradition, she found out that she was pregnant with their child. During the extradition process, she gave birth to this child and was granted bail while she was in custody of the child. During the court proceedings, Zachary, the child, remained in the custody of Dr. Turner, and the grandparents, David and Kate, were granted supervision.

This went on for almost 13 months after Zachary was born, as extradition is a very long and onerous process, but that is another issue for another time. However, near the end of the extradition process, when it looked like Dr. Turner was going to be extradited back to the United States, Dr. Turner took her own life and that of her son, Zachary. On the morning of August 18, 2003, she walked into the waters of Conception Bay and both were drowned.

It had an impact on many Newfoundlanders and Labradorians. There was a public inquiry called to find out why this would happen to a young child, and Dr. Peter Markesteyn conducted a review and investigation. His report made a number of recommendations for provincial child welfare, and the province is working through those recommendations.

There was one aspect of the recommendations in this case that pertained to federal law, and that was bail reform. That is why my private member's bill is dealing with bail reform.

At the conclusion of the investigation, Dr. Markesteyn reached two key conclusions: Zachary Turner's death was preventable, and Zachary was in his mother's care when he should not have been.

That gets me to bail reform and to a conclusion. From this tragic ending, we bring a new beginning to bail reform so that no other family will go through the devastation that Kate and David Bagby have gone through.

Obviously, I had to come quickly up to speed on private members' business, this being my first time in Parliament. I looked at the options for amending the Criminal Code provisions pertaining to bail. We had to balance the Canadian Charter of Rights and Freedoms with the need to have our court system reflect a requirement to protect the safety of minor children in the custody of their parents.

After consulting with David and Kate Bagby and discussing my intentions with many colleagues and the legal community, we came to what we have here today, a bill entitled, An Act to amend the Criminal Code (justification for detention in custody).

In summary, the bill, when enacted, will amend the Criminal Code to provide that the detention of an accused in custody may be justified where it is necessary for the protection or safety of minor children of the accused.

I am also pleased to have the support of Senator Tommy Banks. He has pledged to be my sponsor in the Senate for this bill. I thank Senator Banks for that.

Bill C-464 is not about me; it is about the protection of children. MPs create private members' bills for two reasons: one, to make a political statement, knowing it will not go anywhere; or two, if an MP wants to make a difference and have success. Bill C-464 is an accomplishment that reflects the strength and determination of the parents and grandparents of the late Andrew and Zachary. It is in their memory that we move forward with the bill, and we will do everything in our power to prevent this from happening to another family.

I would be remiss if I did not acknowledge the efforts of Kurt Kuenne. Kurt is the producer of the documentary, Dear Zachary. I can assure hon. members that this is near and dear to Kurt's heart and that he has used his talents to have the story told and to promote legislative reform.

I will be sending copies of the documentary to all members as we move forward. It is worth the 93 minutes to have the opportunity to see how this story unfolded. Kurt was doing a documentary on Dr. Andrew Bagby to give to Zachary. It told the story of Andrew as a person and individual. As this was unfolding, so was Zachary's young life. Zachary's life, as we know, came to a tragic end. Kurt told the whole story in the documentary. It was recently aired on the CTV program W5.

After my announcement that I would introduce this private member's legislation, I had many calls from across Canada supporting this initiative, from B.C. to St. John's. If we can do one thing as legislators to protect the lives of children, then we should pass this bill, so this tragic act never happens again.

I thank hon. members for their support and encouragement as we move forward. I thank Kate and David for their vision and for being strong grandparents. It has been very tough on them. They came to Newfoundland last week and joined me, along with many of their friends and family, and we told them that we were moving forward. They have gone through a wide range of emotions over the last five years. It is a story that touched my heart and touched the hearts of many Newfoundlanders and Labradoreans. If we can move forward with bail reform and change the bail law by putting in five simple words to allow our lawmakers the ability to deny bail for the protection of children, it would be a great step forward.

Madam Speaker, I thank you for the opportunity to bring this forward today. I look forward to discussing it with members from all parties, and I hope I can gather the support of the House.

Criminal Code
Private Members' Business

December 4th, 2009 / 1:45 p.m.
See context

Conservative

Lois Brown Newmarket—Aurora, ON

Madam Speaker, I am pleased to speak to Bill C-464 introduced by the member for Avalon.

The bill raises the important issue of the safety and protection of children from dangerous accused who are awaiting trial. More specifically, Bill C-464 proposes to amend paragraph 515.10(b) of the Criminal Code to remind courts to consider the safety and protection of minor children of the accused when determining whether pretrial detention is necessary.

After an offence is committed, the burden usually falls on the prosecutor to establish certain grounds for the judge or the justice to order the detention of the accused prior to trial. Under the primary ground for detention, bail can be denied to ensure the accused does not flee the jurisdiction. Under the secondary ground, bail can be denied when it is necessary for the protection or safety of the public. Last, bail can be denied under the tertiary ground when considered necessary to maintain confidence in the administration of justice.

Bill C-464 proposes to amend the secondary ground. I would like to indicate the government's support for the bill's laudable goal of protecting children from dangerous accused during the bail process. The purpose of the bill is consistent with this government's commitment to ensuring that the justice system operates in an effective manner to protect children, victims, witnesses and all Canadians.

In the last session of Parliament, Bill C-2, the Tackling Violent Crime Act, received royal assent. That legislation includes a number of Criminal Code amendments aimed at making Canadian communities safer. Among other things, it tackles serious gun crime by imposing higher minimum sentences of imprisonment. It places stricter conditions on dangerous and high risk offenders, and it creates a more effective sentencing regime. That same bill protects children from sexual predators by increasing the age of consent for sexual activity.

In the area of bail reform, Bill C-2 strengthens the bail regime by better protecting the public from offenders accused of committing serious firearm offences. Now there is an onus on those who allegedly commit such offences to demonstrate to the courts why they should be granted bail while awaiting their trial.

Bail reform is an ongoing priority for our government. Currently we are working together with the provinces and territories to develop comprehensive reforms to the bail regime at both the legislative and operational levels. The government is committed to finding ways to prevent the tragic loss of young, innocent lives, such as that of Zachary Turner, and ensuring that the bail regime adequately protects public safety.

If the bill is referred to committee, members would have a very important role to play in examining whether Bill C-464 is effective in ensuring the protection of children from accused persons and whether the bill can be improved. Among other things, committee members may want to examine the fact that the proposed amendment is specifically limited to children of the accused and whether the bill could be strengthened by removing this restriction. This would serve to remind courts to consider the safety and protection of all children and not just the children of the accused.

I look forward to hearing the committee's views on this and other issues involved in strengthening the protection of children at the bail stage.

It should be noted that Bill C-464 would build on the current bail regime which already affords protection to children. Under paragraph 515.10(b) the court considers “the protection or safety of the public, including any victim of or witness to the offence, having regard to all the circumstances” and is bound to consider the likelihood of the accused committing any offence pending trial. In addition, other sections of the Criminal Code outline specific orders that a judge or a justice must consider before releasing an accused charged with an offence involving violence against a person.

Thus, the proposed bill does not substantially change the grounds for detention. It does, however, expressly remind the courts to consider the safety of children when considering if an accused should be detained prior to trial.

The courts' task of accurately assessing the dangerousness or flight risk of an accused and ensuring public confidence in the administration of justice is not without challenges. The presumption of innocence and the right to not be denied bail without just cause are rights enshrined in our Constitution. Clearly, the courts must balance these rights, but must also be vigilant in their assessment of the risks associated with the release of accused persons. This bill appropriately signals the need for courts to assess the safety of children affected by the release of an accused prior to his or her trial.

The protection of children, be it from a dangerous accused or an abusive parent, requires all levels of government to work together. This government is committed to ensuring that appropriate consideration is given to the safety and protection of children during the bail process. More generally, we will continue to work with our provincial and territorial counterparts to improve the operation of the criminal justice system.

This bill complements other government initiatives that strive toward preventing harm by accused persons who threaten the safety of Canadian citizens. The government supports the purpose of this bill and suggests that it be referred to committee to allow for its full consideration as well as for potential amendments to make it even better.

Criminal Code
Private Members' Business

December 4th, 2009 / 1:50 p.m.
See context

Bloc

Jean Dorion Longueuil—Pierre-Boucher, QC

Madam Speaker, I am pleased to rise today to speak to Bill C-464, An Act to amend the Criminal Code (justification for detention in custody), a bill introduced by the hon. member for Avalon.

I would like to begin by saying that I will be voting in favour of the principle of the bill, which amends the Criminal Code to provide that the detention of an accused in custody may be justified where it is necessary for the protection or safety of the accused's minor children.

As we have already heard, this bill is meant as a legislative response to the tragic events of the Bagby-Turner case. A woman, who was charged with the murder of her spouse in the United States and was out on bail in Canada, killed her son in a murder-suicide after she realized she was going to be extradited.

Everyone agrees that this tragedy could have been avoided. Zachary Turner could have been saved. His paternal grandparents, Kate and David Bagby, believe strongly that there are gaps in the legislation regarding bail and that the law must be reformed.

Between the time when a suspect is charged and the beginning of the trial, section 515 and subsequent sections allow a judge to determine whether the accused person should be held in custody or released.

Generally speaking, the accused is released on certain conditions. However, in some cases, if the person is charged with murder for example, they are generally detained until the verdict is delivered.

In the Bagby-Turner case, which was the impetus for this bill, we do not really know why Dr. Turner was released so easily and that is troubling.

We believe that a person charged with murder should not be released if she is considered a threat to the safety of her community and more specifically to her child. That is why we think that the addition to the Criminal Code proposed in Bill C-464 will help draw the attention of the judges and prosecutors to people who are clearly the primary victims of the criminals, namely, their children.

This bill will likely also be useful in cases of spousal abuse, which are more frequent than cases as sordid as the one that resulted in the current bill.

In closing, I want to reiterate that the Bloc Québécois is especially sensitive to the fate of children, who are among the most vulnerable in our society. We make it our duty to defend them.

It appears that, with this bill, the hon. member for Avalon is giving us a way to increase the safety of children and that is why we support the bill in principle.

We hope that it will be passed at second reading. During its review in committee, we will study it carefully to ensure that the proposed legislative amendment is well drafted and inserted into the Criminal Code at the right spot, and that it will be effective.

Criminal Code
Private Members' Business

December 4th, 2009 / 1:55 p.m.
See context

NDP

Jack Harris St. John's East, NL

Madam Speaker, I am pleased today to have an opportunity to speak to Bill C-464 standing in the name of the member for Avalon. I want to thank the member for his work on this legislation and bringing it before the House.

I am here to speak in support of the bill. We support the changes to the Criminal Code provisions on what is known as judicial interim release or bail which are found in section 515 of the Criminal Code of Canada: “The detention of an accused in custody is justified only on one or more of the following grounds:”.

The grounds that we are dealing with here are set out in the bill:

(b) where the detention is necessary for the protection or safety of the public, including any victim of or witness to the offence,--

And the additional words are added as follows:

--or minor children of the accused, having regard to all the circumstances--

As the member from the Conservative Party has pointed out, the provision for bail is a charter protection, that someone charged with an offence has the right not to be denied bail without just cause and these are the provisions that set out what the just causes are, the protection of the public of course is one of those.

As the member for Avalon has pointed out, the bill came about as a result of the efforts of Kate and David Bagby, the grandparents of a young child, Zachary Turner, who was killed by the child's mother whose name was Dr. Shirley Turner, who in killing herself also took the young infant child into the waters of Conception Bay, drowning both of them.

This case was a most heart-wrenching case that I have heard of in terms of a young child. The circumstances were such that the only son of Kate and David Bagby was a medical student at Memorial University in St. John's, along with Dr. Shirley Turner. They both graduated. They had a relationship. Zachary Turner was a child of that relationship born after Dr. Andrew Bagby was shot and killed in a park in Pennsylvania. Shirley Turner was then charged with an offence and the United States government was seeking extradition. While that was ongoing, Dr. Turner applied for and received bail from the Newfoundland Supreme Court.

It was during the bail proceedings, while she was released from bail, that she in fact killed herself, drowned herself and the young child, Zachary Turner.

The case of course was most heart-wrenching. One could only admire and respect Mr. and Mrs. Bagby. It is most difficult to explain in words the feelings after watching this case. Mr. and Mrs. Bagby came to Newfoundland numerous times throughout these proceedings to try, even after their son had been murdered, to build a relationship with this baby infant Zachary for whom they spent all of their time and energy trying to save, nurture and develop a relationship, even knowing in their minds that the person who they were dealing with had murdered their son. This was never proven in court but the extradition proceedings were ongoing.

David Bagby wrote a book about the experience and about all of the efforts that they had made to seek changes to the bail law. As the member for Avalon knows, what they would like to see is that anyone charged with first degree murder not be given bail at all.

That is not what the bill says but what the bill does say, and I think it is important that the bill be passed and we will be supporting it, is that in considering whether someone should be released on bail, that the protection and safety of the minor children of an accused ought to be taken into account.

This case was perhaps a failing not only of the judicial interim release provisions but perhaps also of the child welfare authorities, which I think were criticized in the report that was done a couple of years later.

However, the passion, the concern, the devotion, and the commitment of Kate and David Bagby, I think, was astounding and memorable. I have had several conversations with this couple in my capacity as a member of the House of Assembly of Newfoundland and Labrador and assisted in advocating for some of the reports that were done.

The change here would require a justice to take into consideration, in looking at the bail provisions, the necessity for detention in relation to the protection or safety of the public, including the minor children of the accused. So, where there are minor children involved in a situation, the situation of those minor children, the safety of those minor children, the possibility that some harm might come to them has to be, and can be, taken into consideration by a court in denying bail.

If this change can serve to save the life of a minor child in the future, this would be a very positive step. We support this legislation and seek to have it brought to committee.

I have no doubt that the committee will likely hear from Kate and David Bagby, who have devoted a lot of their efforts and time in a most painful process, but one that they feel very strongly about, in terms of trying to bring about changes to the bail laws in Canada. They are American citizens, but they have seen this as a cause that they have taken on.

I am pleased that the member for Avalon has brought this bill forward. We will be supporting it at second reading, and we hope that the committee will consider it favourably when it is sent there.

Criminal Code
Private Members' Business

December 4th, 2009 / 2:10 p.m.
See context

NDP

Jim Maloway Elmwood—Transcona, MB

Madam Speaker, I am very pleased to speak to Bill C-464.

I must admit that this is a very touching story, one that I remember from the past. When I heard that this bill was coming up, I read the background and I wanted to be here today to support the member for Avalon in his efforts.

All too many times we have extremely good causes in the House and we get bogged down on parts of an issue and it does not allow us to get results. I am hopeful that all members in the House will support this bill. I understand Bloc members are in support of it. The NDP caucus supports this bill. I am not 100% sure about the government side. I note that the member for Kildonan—St. Paul asked a question at the beginning of the debate, and I think she is a good supporter of issues such as this one. The member for Avalon may be on the verge of getting unanimous support of the House, but I do not want to prejudge it. It certainly would be a good development if that were to happen.

In terms of the background of the bill, Bill C-464 is the result of the MP for Avalon taking the initiative in co-operation with Senator Tommy Banks. The member needed a senator to sponsor his bill in the other place. This bill is also the result of the determined efforts of Kate and David Bagby.

In 2001 Dr. Andrew Bagby was murdered in a Pennsylvania park. At that time police in the United States questioned Dr. Shirley Turner of Saint John's, Newfoundland about the murder. Soon afterward, Dr. Turner returned to Newfoundland and made known her pregnancy with the child of the late Dr. Bagby. Court proceedings followed. Dr. Turner fought to stay in Canada. Zachary was born. Grandparents Kate and David Bagby actually moved to Newfoundland to file for custody of Zachary. That was about the time that a lot of national coverage began on this story. During the court proceedings, Dr. Turner was granted bail and Zachary remained in her custody with the grandparents being given supervised visitations.

On August 18, 2003, Dr. Turner took her own life and the life of baby Zachary. While on bail, Dr. Turner jumped into the Atlantic Ocean at Conception Bay South, Newfoundland with Zachary and both died.

Since that time, Kate and David Bagby have been presenting their story and seeking reform of bail legislation. In addition, their friend and filmmaker has prepared a documentary entitled, Dear Zachary: a letter to a son about his father. This documentary has played throughout Canada and in the national media. The sponsor of the bill has indicated that he will be releasing copies of that film.

The MP for Avalon has pledged his support to the Bagbys. He has also committed to bringing about legislative reform within the Criminal Code that would hopefully strengthen bail requirements to achieve a common goal so that no one would have to witness and live through the devastation of losing loved ones through circumstances later determined as preventable. That is what this case was all about.

Dr. Peter Markesteyn is a friend of mine. I have known him for years. He conducted a review and investigation of the circumstances surrounding the death of Zachary in 2003. Dr. Markesteyn made two key conclusions, that Zachary Turner's death was preventable and that Zachary was in his mother's care when he should not have been.

This is a very important piece of information to lead us to make a determination that certainly in cases like this the child should not be in the care of the individual. My colleague from Newfoundland pointed out that child and family services should have played some sort of a role in this situation.

In 2001 a criminal case unfolded in Newfoundland and Labrador, Turner-Bagby, and provided sound rationalization for Bill C-464.

There are some other points that should be mentioned. The decision to deny bail to an accused may be appropriate for the intended protection of the rights and safety of minors in the custody of the accused. We can split hairs here and get into all sorts of arguments. Each case will obviously be judged on its merits. I can see arguments being made about one case being different from another, and how some people believe they should have custody when they are accused of a murder.

In addition, judicial decision makers must be attentive for the necessity of protecting minors who remain in the custody of individuals charged with serious offences. In this case the charge was murder. I cannot think of a more serious charge or serious circumstance where action should have been taken.

Hindsight is always perfect and it is easy for us to look back on a situation and say that if only we had done this or that, then the result that happened would not have happened. Unfortunately it is very difficult for this to occur. At a certain point we have to simply draw a line, make a decision and follow it.

In addition, the protection and safety of minors remaining in the custody of individuals charged with serious crimes has to be considered during the bail hearing procedures.

The enactment amends the Criminal Code to provide that the detention of an accused in custody may be justified where it is necessary for the protection or safety of the accused's minor children. I am not certain at the end of the day whether that should be the end of it or whether or not it should include more than just the accused's children. There may be other people who may be at risk in this situation. That certainly is part of it.

I know that while Kate and David Bagby are supportive of the member's bill, as my colleague, the member for St. John's East pointed out, initially they did want more restrictive bail measures, but at the end of the day, they are happy with what is in this bill. Presumably when the bill gets to committee, we will hear from the Bagbys and we will get a better bearing of where we are.

I understand my time might be getting short, but I am not sure how short. Madam Speaker is indicating 25 seconds.

Criminal Code
Routine Proceedings

October 22nd, 2009 / 10:05 a.m.
See context

Liberal

Scott Andrews Avalon, NL

moved for leave to introduce Bill C-464, An Act to amend the Criminal Code (justification for detention in custody).

Mr. Speaker, it is a pleasure to rise here today to introduce my first private member's bill for the protection of minor children of persons who are accused of a serious crime. This has been an issue in my area for a long time. There was an inquiry on this on Zachary Bagby Turner. This Sunday, there will be a documentary on CBC at 10 p.m. eastern time that will outline the story and the history behind this bill.

It is a pleasure to introduce this bill, and I look forward to having it debated here in the House of Commons.

(Motions deemed adopted, bill read the first time and printed)