Bill C-464 (Historical)
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.
Scott Andrews Liberal
Introduced as a private member’s bill.
This bill has received Royal Assent and is now law.
December 15th, 2010 / 4:35 p.m.
The Speaker Peter Milliken
I have the honour to inform the House that when the House went up to the Senate chamber His Excellency the Governor General was pleased to give, in Her Majesty's name, the royal assent to the following bills:
Bill S-3, An Act to implement conventions and protocols concluded between Canada and Colombia, Greece and Turkey for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income--Chapter No. 15
Bill S-2, An Act to amend the Criminal Code and other Acts--Chapter 17
Bill C-3, An Act to promote gender equity in Indian registration by responding to the Court of Appeal for British Columbia decision in McIvor v. Canada (Registrar of Indian and Northern Affairs)--Chapter 18
Bill S-215, An Act to amend the Criminal Code (suicide bombings)--Chapter 19
Bill C-36, An Act respecting the safety of consumer products--Chapter 21
Bill C-31, An Act to amend the Old Age Security Act--Chapter 22
Bill C-28, An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act--Chapter 23
It is my duty pursuant to Standing Order 38 to inform the House that the questions to be raised tonight at the time of adjournment are as follows: the hon. member for Dartmouth—Cole Harbour, Canadian Council on Learning; the hon. member for Vancouver Kingsway, Public Safety.
Private Members' Business
December 13th, 2010 / 11:45 a.m.
Rod Bruinooge Winnipeg South, MB
Mr. Speaker, as a father, I love my children and I know their mother perhaps loves them even more than I do, if that is possible. Some mothers fall in love with their children even before birth in a way that few of us can understand. These mothers should never have to make a choice between protecting themselves or the child they love.
Forced abortion should be made illegal in Canada. Roxanne's law would accomplish this. The main argument used against Roxanne's law is that the bill is totally redundant because, so opponents claim, abortion coercion is already covered in the Criminal Code under existing provisions for assaults, uttering threats or intimidation. If I wanted to oppose a bill whose sole purpose was to protect women from abortion coercion, I too would want to find some excuse that made it sound like I was in favour of forced abortion. Saying it is already illegal gives me that cover. It allows me to oppose the bill for what sounds to be a legitimate reason while still professing how terrible it is to coerce a woman into having an abortion. After all, who wants to be known as someone who supports what the Immigration and Refugee Board of Canada called a crime against humanity? The problem is that the argument that it is already illegal falls apart upon analysis.
Although some of the conduct described in Bill C-510 could fall under existing provisions in the Criminal Code, depending on the circumstances, not all behaviour that could fall under the definition of coercion in Bill C-510 would be captured under existing provisions. It is important to note that the list of examples of coercion in Bill C-510 is not exhaustive. This allows the court some discretion in deciding what constitutes abortion coercion given how it is defined in the bill. Above all though, the fact that no one has ever been charged with coercing an abortion in Canada is absolute proof that clarification of the law is desperately needed, a law Roxanne Fernando could have used to protect herself.
Even in cases where a more general provision would suffice, there is tremendous value in having a new Criminal Code provision specific to abortion coercion. Criminal law scholars say we use the criminal law as a way of indicating a serious condemnation of an activity or action not only to punish people but also to state our most important social values and to send a clear message expressing society's rejection and intolerance of a specific act. When we single out coerced abortion as a separate offence, it is a signal that such behaviour should be denounced as a serious offence. It reflects a social value about the unacceptability of forcing a pregnant woman into ending a pregnancy she wants to continue.
Creating specific provisions when a more general provision already exists in the Criminal Code is not a new idea. There are three such bills currently before Parliament which have passed at least one parliamentary vote. Bill S-9 makes it an offence to steal a motor vehicle even though theft is already an offence. It received royal assent last month. Bill S-215 and Bill C-464 also bring important clarifications to laws that perhaps already capture the crimes contemplated. These are excellent ideas and important clarifications, just as Roxanne's law is.
Thus, it is clear that as legislators we often create offences and provisions even when a more general provision would suffice. We do this in order to send a strong message of denunciation to affirm society's deeply held values and to educate the public. Should one choose to vote against Bill C-510, it will be seen as a choice to turn a blind eye to a horrible injustice.
Roxanne Fernando's story has now been heard across the country and if not now, someday soon she will be considered a Canadian hero. In this Christmas season, I ask members to consider bringing additional protection to mothers with child who are facing dangerous circumstances.
Private Members' Business
March 22nd, 2010 / 11:35 a.m.
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.
Private Members' Business
March 22nd, 2010 / 11:15 a.m.
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.
Private Members' Business
March 22nd, 2010 / 11 a.m.
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.
The House proceeded to the consideration of Bill C-464, An Act to amend the Criminal Code (justification for detention in custody), as reported (with amendment) from the committee.
Justice and Human Rights
Committees of the House
March 17th, 2010 / 3:05 p.m.
Ed Fast Abbotsford, BC
Mr. Speaker, I have the honour to present, in both official languages, the first report of the Standing Committee on Justice and Human Rights. In accordance with the order of reference of Wednesday, March 3, your committee has considered Bill C-464, An Act to amend the Criminal Code (justification for detention in custody), and agreed on Tuesday, March 16, to report it with amendment.
March 16th, 2010 / 12:35 p.m.
March 16th, 2010 / 12:34 p.m.
March 16th, 2010 / 11:25 a.m.
Executive Director, Canadian Resource Centre for Victims of Crime
Okay. I'm sorry.
These children often survive because of the sole actions of their murdered parents and will likely be irreparably harmed by these offences.
It was argued in the Turner case that Shirley Turner need not be detained, as she had allegedly sought to harm and ultimately murdered the only person she would have wanted to harm. Our experience in working with victims of domestic violence tells us this logic is flawed, and this is generally not the case. Abusers, especially those who prey on a spouse or a significant other, generally don't differentiate between their spouses and their children. They seek to harm those who are vulnerable and dependent on them. The children are quite frequently harmed in order to inflict pain on the spouse or in response to the relationship shared by the spouse and the children.
Our experience and media reporting tell us that the public is concerned about crimes committed by those people who are on bail and awaiting trial for other offences. This is especially true in cases involving serious or violent offences, the cases that this amendment was drafted to address. As written, it will enable a judge who is considering a bail application to take into account the risk that the accused is likely to commit a serious crime if he or she is given bail, and to include the accused's minor children in the determination of that risk.
The proposal does not suggest that all accused be denied bail or that the conditions under which a person will be granted bail be made so onerous that no accused will be granted bail. It asks that meaningful consideration be given to the minor children of the accused when determining risk—children who are quite often at the greatest risk of harm at the hands of the accused. It does not dictate that bail will be refused in any given case or that having children would unfairly predispose an accused to remand.
On a daily basis our centre assists Canadians like the Bagbys. Serious, violent crime has had an impact on their lives. These victims and survivors want more than anything else to ensure the justice system has the tools in place to prevent what happened to them or to their loved ones from happening to anyone else. The legislative change proposed in Bill C-464 will compel the judiciary to consider the minor children of the accused when they are making decisions on judicial interim releases. Had such consideration been given to Zachary Turner, Christian Lee, Jessica, Brandon, and Kevin Mailly, and Robert Mends, among many others, they would likely be alive today.