Debates of April 9th, 1997

Criminal Code

[Some hon. members]

Agreed.

[Some hon. members]

No.

[Gordon Kirkby, Liberal, Parliamentary Secretary to Minister of Justice and Attorney General of Canada]

Mr. Speaker, I am pleased to speak to Bill C-247, an act to amend the Criminal Code with respect to trespass.

The bill proposes to amend section 41 of the Criminal Code by adding a new subsection (3), which would carry a summary conviction offence in the case of subsequent trespass.

The bill would therefore create a specific offence that would apply whenever a person trespasses on any property after having already been lawfully asked to leave or prevented from entering less than 24 hours before. This subsequent trespass would occur with respect to residential property or any other kind of property.

I believe the hon. member for New Westminster-Burnaby is trying with this bill to stem a problem that occurs in his constituency and which may be taking place in a number of urban areas across the country. The problem is essentially one of people, particularly young persons, who may hang out at shopping centres and at times to some degree make a nuisance of themselves. These young people are often asked to leave by a security guard or a shop owner but they keep coming back, sometimes day after day.

I agree with the hon. member that sometimes such behaviour can be annoying. However, I have problems with the remedies proposed by the hon. member. I believe that the proposed remedy is not in line with the principles that govern the current trespass provisions in the Criminal Code.

Section 41 of the Criminal Code provides that a person who is in peaceable possession of a dwelling house or real property is justified in using reasonable force to prevent a person from trespassing on the property or to remove the person from the property. Trespassing itself does not constitute a criminal offence. A criminal offence would be committed only if there were physical resistance of one sort or another to the removal that could be considered an assault.

Under the current law no offence is committed when one leaves a place without resistance when asked to do so. The change that the hon. member is proposing is to make it an offence to return after one has been asked to leave once and has left the place peacefully.

My first comment is that the bill appears to create a somewhat odd situation. The oddity would come from the face of the bill that makes it an offence to trespass in a certain place when one does it for the second or subsequent time but when the same act done for the first time is not an offence. I find that a little odd.

Another concern is that the bill would make it an offence to trespass on not only private property but even in a public place. The bill would apply not only to persons doing subsequent trespassing on a dwelling house but also to persons doing subsequent trespassing on any real property, including places considered generally open to the public.

There are some instances where trespassing is a criminal offence under the Criminal Code provisions. For instance, trespassing at night is an offence. Section 177 of the Criminal Code makes it an offence to loiter or prowl at night on the property of another person near a dwelling house situated on that property. Trespassing at night is an offence punishable by summary conviction.

Clearly there is a big difference between trespassing at night, which has sinister connotations, and the kind of trespassing that Bill C-237 is aiming at.

While I agree that teenagers hanging out at the mall can annoy some shop owners and clients, this behaviour does not in general have a sinister characteristic that trespassing at night could have. The behaviour considered in Bill C-237 is nowhere near as serious

as what is considered to constitute a trespassing offence under the Criminal Code.

What we are talking about here is more like what is referred in common parlance as loitering. I would like to point out that loitering in a public place and obstructing persons who are in that place is already a summary conviction under section 175(1)(c) of the Criminal Code. A person or group of persons hanging out at a shopping centre may fall within the ambit of 175(1)(c) if they obstruct persons such as shoppers or shopkeepers who are in that place.

I believe that the offence of loitering in section 175(1)(c) would make sense precisely because of the conduct of obstruction, that which causes inconvenience or harm to other people. However, young people who simply hang out at their local shopping mall are not causing any obstruction and are not committing any actual misconduct, nor are they doing any direct physical harm to anyone.

Creating a Criminal Code provision aimed at alleviating this type of situation is like swatting a fly with the proverbial sledge hammer. The hon. member indicated that in many areas these situations can be remedied by either municipal bylaws or provincial law. It seems a long stretch to use the most severe legislative sanction that can be drawn, that is the Criminal Code, the criminal law of the land.

The hon. member wants to make it an offence just to be in a place that is not necessarily a private residential property or some place of a private nature. He wants to make it an offence to be in a public place such as a local shopping mall. I am concerned about the potential for abuse by the owners or tenants of these public places and perhaps by security guards or law enforcement authorities.

I strongly believe it is not appropriate to create a Criminal Code offence that would criminalize acts that can be seen as trivial in comparison with what is normally the domain of the code, more so since these acts often involve young people.

In addition, I do not believe it is necessary since there are already provisions in the Criminal Code that would allow authorities to deal with cases that do constitute a nuisance. As I indicated previously, when serious actual acts which harm or could harm either shopkeepers or clients to public places are taking place, the Criminal Code already has sanction for these more serious activities.

I cannot support the bill because the type of problem the bill is dealing with is not the type of problem that would appropriately be dealt with in the Criminal Code. This is a type of problem, as I indicated, that could very easily be dealt with by municipal bylaws and provincial statutes and regulations.

Unless we are dealing with serious matters we should allow our provincial municipal authorities, those closer to the scene of the problem, to make legislation that fits in their circumstances.

[Michel Bellehumeur, Bloc, Berthier—Montcalm, QC]

Mr. Speaker, it is always a pleasure to speak to a bill introduced by a member who has taken the time to move amendments to the Criminal Code. The bill clearly reflects the concern of the hon. member for a problem he has encountered in his riding or a problem experienced by his constituents.

However, I will say right away that I cannot support this bill. I cannot support the bill introduced by the hon. member of the Reform Party, and I will explain why, very briefly.

First of all, I will quote the text of this amendment to section 41 of the Criminal Code:

Every person is guilty of an offence punishable on summary conviction,

This indicates right away the intent to criminalize a certain activity.

who (a) trespasses on a dwelling house or real property; and (b) has, within the previous twenty-four hours, been lawfully removed from, or prevented from entering, that dwelling-house or real property.

This section might have two different applications. We have to look at the context. The hon. member on the government side gave a good example, the one about young people loitering in a shopping mall or on the sidewalk, and the owner of the mall or the merchants want them to leave. There is also the somewhat more serious case of quarrels between neighbours or members of the same group, when the court is asked, because such procedures exist in the Criminal Code, to prohibit this man or this woman from entering certain premises. In such cases, the judge will make the following order: he will prohibit a person, because he had previously uttered threats or been otherwise troublesome, from being on the other person's property.

The Criminal Code already contains provisions to deal with any breach of such orders. This aspect that may be affected by this amendment is already covered by the Criminal Code. So something else would be added, since when an order is breached, the person is brought before the court and then has to suffer the consequences of his actions.

In the other case, someone mentioned earlier the example of loitering in commercial buildings or even in front of a private residence or elsewhere. I think I agree with the government on that

score. This kind of behaviour should not be criminalized, and as a member of the Bloc, I think we should look at the broader context. I think it is more a municipal problem than anything else. It is a problem that local authorities, in other words, municipal councillors and mayors of municipalities, can deal with by passing appropriate bylaws on loitering.

As far as I know, many municipalities in Quebec and across Canada have already passed bylaws in their municipalities to prevent young people from making a nuisance of themselves one way or another in public places or in front of private residences.

My point is that the hon. member was probably well intentioned when he decided to propose this amendment to the Criminal Code, but an amendment has to add something new, it has to fill a void. At the present time, I think that our municipal bylaws, the Criminal Code and other appropriate legislation already deal with this problem and that it is unnecessary to amend the Criminal Code by adding an additional paragraph as proposed by the member of the Reform Party.

This is why we in the Bloc Quebecois are not in favour of Bill C-247.

[Ken Epp, Reform, Elk Island, AB]

Mr. Speaker, I would like to add a few words of what I hope will be considered common sense to the debate. The bill which my hon. colleague has put forward has a lot of common sense at a very elementary level.

The bill simply deals with refusing to allow a person re-entry who has been already illegally evicted from a premise. Let us stop to think about it from a very practical point of view. There is not a merchant in the country who will kick his customers out if the customers are good for business. It also makes a lot of sense to consider if he or she is encountering interference by people on the premises who are preventing other people from coming in or even making them uncomfortable because of their antics. If there is adequate reason to remove that person lawfully, which is the first part of the bill, why should there not also be a simple provision that says the person may not come back? Perhaps 24 hours is not enough.

That is what the motion is stating. A person can be kicked out of a place, walk right back in, do the same thing, be kicked back out, come back in, do the same thing and on it goes. There is no remedy to that situation. It can be repeated over and over.

My hon. colleague is simply saying that we should give that individual a chance to stop and think about it and give the involved security people or the police staff the opportunity to say to the person: "You are out of here for 24 hours. Stop to think about what you are doing. Maybe you will correct yourself".

At the time of the initial eviction, especially with young people, very often there is a little element of peer pressure. They just want to prove a point and maybe have a bit of fun. That would break this up and solve the problem. We in the Reform Party are very interested in preserving the rights of law-abiding citizens.

In this instance we are taking people who are pushing to the limit the rights and the privileges of others. We are saying that for a short time their right to enter the premise will be suspended. It is just a very gentle way of correcting them instead of digging them into a big hole.

There is always the debate on whether this is a provincial matter. We have heard that a lot this week in the debates on justice issues. I suppose one could argue that almost everything is provincial in the sense that almost everything is given in the Criminal Code to the provinces to administer. There is a national Criminal Code, the Criminal Code of Canada. Within that code are these articles of trespass and other provisions. Why not strengthen it so that it could be made to work more smoothly?

One of the last things I would like to see happen is our security people or those working on police forces wasting their time frivolously putting people out and allowing them back in because they have to under the present provisions without there being a remedy.

Now it is suggested that every municipality could have a regulation in this regard. Why should we ask the thousands of municipalities to deal with the issue and to include it in their own provisions? That would result in a lack of uniformity and an inefficiency in terms of the use of legislators' time when we could have a national law in the form of a change to our national provisions which would solve the problem?

In conclusion, it is unfortunate the way this place works. The member from the Bloc who spoke said: "I and the members of my party will not be supporting this provision". In other words he is the justice critic. He comes in here. He looks at it and says: "That is the end of it. Our guys will not be supporting it".

The parliamentary secretary already made the decision on behalf of the Liberal Party. This is a private member's bill. Of course we have free votes. Instead of a carte blanche that says we will not support it and thereby have everybody jump into line, perhaps it would be better if the leaders in their respective caucuses would challenge their people to think about the matter and to make their decision individually.

They should talk to the people in their ridings as my hon. colleague has done. His motion is a direct result of representations to him by people involved in these kinds of things. He has talked to the police who actually have a suboffice in the shopping mall. They have a problem where their time is being wasted by having to repeatedly put people out. They have no legal provision to tell them not to come back.

That is all that is being asked here. It makes a great deal of common sense. As I said in the beginning, it is perhaps a little too elementary for members opposite to realize, but I plead with them to consider the matter carefully. Let us allow the legislative process and the Liberal red book commitment to more free votes to apply. Let us deal with the issue rather than simply have one person say: "We will not support it because it is a Reform motion" or for whatever other reason.

I am thankful for the opportunity to participate. I hope I have added value to the debate this evening.

[The Acting Speaker (Mr. Milliken)]

There being no further members rising for debate and the motion not being designated as a votable item, the time provided for the consideration of Private Member's Business has now expired and the order is dropped from the Order Paper.

A motion to adjourn the House under Standing Order 38 deemed to have been moved.

[Osvaldo Nunez, Bloc, Bourassa, QC]

Mr. Speaker, last February 11, I asked the Minister of Citizenship and Immigration a question about unacceptable delays in processing files at the IRB.

When the Liberals were in opposition, they often criticized these delays. Now, they are in power and the problem has become worse. Right now, there are over 30,000 files awaiting a hearing or a decision, over half of them in Montreal. Even the IRB thinks there should be no more than 15,000 files to process at any given time. On average, refugee status claimants must wait 15 months for a decision, and often two, three or four years.

These delays are extremely costly for the federal government, to which the IRB reports, and for the provinces, which must pay the cost of welfare, and of health and other social services. These delays also have serious consequences for an individual seeking asylum, who lives in uncertainty and alone, separated from his family. Only if there is a decision in his favour can a refugee bring his wife and children over.

When I asked my question, I also denounced the government's systematic patronage in its appointment of IRB commissioners. During the election campaign we will be criticizing the government for adopting the same patronage practices that it itself denounced in the past.

Amnesty International recently criticized the Canadian government for being more or less indifferent to the fate of refugees and for imposing new restrictions on their entry. Last March, this organization launched a campaign in Montreal in support of refugees that is being held simultaneously in all countries in which Amnesty International is present.

Only 10 per cent of refugees have access to industrialized countries. Only those who can afford the trip, by plane or ship, are able to take refuge in the West.

It should be pointed out that relatively few people seek asylum here. Canada ranks 17th in absolute terms and 46th, if the number of refugees is compared to the GNP. In addition, Canada is the only country in the world to charge refugees and their dependants a settlement tax of $1,475 per adult and $100 per child.

Last April 3 in Montreal, I met with a group of leaders from Quebec's Zairian community headed by Tshibuy Mulay Dyany, a constituent in my riding. The group included a number of people seeking asylum who complained about the IRB's lengthy delays. They thanked the Bloc Quebecois and particularly the critic for citizenship and immigration for their efforts to help Zairian refugees.

Today, we learn that there is widespread chaos in this country with the advance of Kabila's troops. I think that the dictator Mobutu should step down and leave the country immediately in order to facilitate a peaceful return to democracy. For 35 years now, the Mobutu regime has systematically violated the most elementary human rights.

At my nomination meeting last Sunday, which was attended by Gilles Duceppe, Bernard Landry, Henri Massé, Bernard Daoust, a number of MPs and MNAs and 300 Montrealers, I appealed to the Government of Canada to come to the assistance of tens of thousands of Zairian refugees. Many are dying there daily through illness or starvation. Today, I repeat this request to the government to be sensitive to the needs of Zairian refugees.

[Maria Minna, Liberal, Parliamentary Secretary to Minister of Citizenship and Immigration Lib.]

Mr. Speaker, as the hon. member knows, the daily management of Canada's refugee status determination system is the responsibility of the chairperson of the immigration and refugee board.

It seems to me the hon. member is suggesting that we rush cases through in order to do away with this backlog. This is a reckless and irresponsible suggestion. There needs to be proper attention given to each and every case.

Every aspect of the board's work touches on the lives and liberties of the people who appear before it. We need to take the time required to ensure that people receive a fair and equitable hearing. Often people's safety and security depend on it.

This does not mean to say that the government is not dealing with this backlog. Measures have been taken to address the increase in workload and to improve the board's efficiency and speed. Both the IRB and citizenship and immigration have been working hard to improve the system.

Last December, for example, the Department of Citizenship and Immigration signed an administrative framework agreement with the board. This agreement is designed to increase co-operation and information sharing, which should assist greatly in the process. It also commits the two bodies to find ways to introduce and share advanced technologies which will enhance operational efficiency.

Bill C-49 is another example. The bill is currently before Parliament and contains two provisions which will reduce the refugee division panel from two members to one. This legislative change will improve the efficiency of the IRB while reducing the processing time required to identify refugees needing our protection.

There is a great deal being done. I appeal to hon. members of the House to support this bill. Its swift passage will help alleviate the backlog.

[The Acting Speaker (Mr. Milliken)]

The motion to adjourn the House is now deemed to have been adopted. Accordingly, this House stands adjourned until tomorrow at 10 a.m., pursuant to Standing Order 24(1).

(The House adjourned at 6.50 p.m.)