House of Commons Hansard #62 of the 39th Parliament, 1st Session. (The original version is on Parliament's site.) The word of the day was workers.

Topics

Kelowna Accord Implementation Act
Private Members' Business

11:55 a.m.

Conservative

The Acting Speaker Royal Galipeau

All those opposed will please say nay.

Kelowna Accord Implementation Act
Private Members' Business

11:55 a.m.

Some hon. members

Nay.

Kelowna Accord Implementation Act
Private Members' Business

11:55 a.m.

Conservative

The Acting Speaker Royal Galipeau

In my opinion the yeas have it.

And more than five members having risen:

Kelowna Accord Implementation Act
Private Members' Business

Noon

Conservative

The Acting Speaker Royal Galipeau

Pursuant to Standing Order 93, the recorded division stands deferred until Wednesday, October 18, 2006, immediately before the time provided for private members' business.

The House resumed from October 4 consideration of the motion that Bill C-23, An Act to amend the Criminal Code (criminal procedure, language of the accused, sentencing and other amendments), be read the second time and referred to a committee.

Criminal Code
Government Orders

Noon

Fundy Royal
New Brunswick

Conservative

Rob Moore Parliamentary Secretary to the Minister of Justice and Attorney General of Canada

Mr. Speaker, I rise today to speak to Bill C-23, An Act to amend the Criminal Code (criminal procedure, language of the accused, sentencing and other amendments). The government has already presented important measures in the House that aim at providing better protection for Canadians against crime.

Bill C-23 responds to the government's multifaceted goal of tackling crime by strengthening sentencing measures, enhancing the efficiency of certain procedures and improving access to justice by clarifying court related language rights provisions in criminal proceedings. Most of these amendments are the result of changes that the provinces, territories and other stakeholders have been instrumental in helping our government identify.

Hon. members will appreciate that Bill C-23 is not about fundamental law reform. Rather, it is about fine tuning. While the amendments contained in Bill C-23 are generally of a technical nature, they are nonetheless important. These amendments can be divided into three major groups. I propose to first highlight some of the criminal procedure amendments. I will then say a few words with respect to the amendments proposed to the language rights provisions of the Criminal Code. Finally, I will detail some of the sentencing amendments.

First, let me deal with criminal procedure.

Criminal procedure amendments would, among other things, improve procedural efficiencies and rectify certain shortcomings in criminal proceedings. Other amendments would confirm the intent behind some criminal procedure provisions and clarify their application. For instance, a corrective amendment is needed to rectify the situation by which the appeal route of a Superior Court judge's order is to return seized property to another judge of the same court. This is obviously problematic. In order to make this appeal route consistent with other similar appeal route processes and to avoid the unusual situation whereby a judge is called upon to review the decision of a fellow judge from the same level of court, the amendment would provide that the appeal of a superior court in relation to the forfeiture of things seized would lie with the Court of Appeal rather than with the Superior Court.

Another amendment would bring more clarity to section 481.2 of the Criminal Code, which deals with the ability to charge and try an accused in any territorial division for an act or omission committed outside of Canada. This amendment would clarify that the intent would not be to make any criminal act or omission committed outside of Canada an offence in Canada. Usually offences are prosecuted in the territorial division where they are committed. This, however, poses a difficulty with respect to those offences that, while having been committed outside of Canada, can be prosecuted in our country in accordance with a federal statute. War crimes are examples of such offences.

Unfortunately, the current wording of section 481.2 leaves room for interpretation whereby any offence committed outside of Canada could be prosecuted here, and that is clearly not the case. The amendment would now make it clear that this provision would deal strictly with court jurisdiction and would act as a residual clause where proper court jurisdiction with respect to territorial division would not otherwise be provided for in another federal statute.

Another criminal procedure amendment is proposed with respect to the right of an accused to be tried before a judge, sitting without a jury, where an indictment has been preferred; that is, where the Crown files the indictment directly before the Superior Court. Currently, when this is the case, the accused may not, without the written consent of the Crown prosecutor, choose to be tried before a court sitting without a jury. The amendment would allow the accused to elect to be tried before a Superior Court judge, sitting without a jury, subject to certain conditions. This amendment would introduce more flexibility and would assist in avoiding unnecessary jury trials where the accused would prefer to be tried by a judge alone.

Another proposed amendment will streamline the process for executing search warrants in a jurisdiction other than the jurisdiction where the search warrant has been issued. Currently, before a search warrant can be executed in another province, it must be presented to a judge or a justice in the other jurisdiction for endorsement in its original paper form. Obviously, this can be time consuming, complicated and inefficient. This process is resource intensive and very time consuming. The proposed amendment will allow the search warrant to be sent by facsimile or by another means of telecommunication, thereby permitting a copy of the search warrant to be endorsed by a judge or a justice in that other jurisdiction.

By taking advantage of technologies that are both reliable and expedient, we are making better use of the time and resources of law enforcement agencies.

Bill C-23 also contains two amendments in relation to jury selection. When selecting jurors, the Crown and the defence are each afforded a certain number of peremptory challenges; that is the ability to unilaterally reject a potential juror without having to invoke any specific ground. One proposed amendment will fill a gap in the current scheme by clarifying that peremptory challenges will also be available where a sworn juror is excused before the evidence is heard and where a replacement juror must be selected.

The other proposed amendment will assist in preserving the impartiality of prospective jury members, as well as sworn jurors, by providing the court with the power to order the exclusion of jurors from the courtroom where a potential juror is being questioned in the course of a challenge for cause and may potentially through his or her answers inadvertently jeopardize the jurors impartiality.

These technical yet practical changes to the various processes that operate in the criminal justice system will contribute to the improvement and greater efficiency of criminal procedure.

I will speak a bit about language rights. The amendments in Bill C-23 with respect to language rights deal with an accused person during a criminal proceeding. The right of all accused to a trial in either official language is consistent with both the letter and the spirit of the language provisions enshrined in the Constitution Act, 1867, and in section 19 of the Canadian Charter of Rights and Freedoms.

Since 1978, the Criminal Code has sought to ensure access to services of equal quality for members of both official language communities. This is an important objective because, as the Supreme Court of Canada noted, “Rights regarding the English and French languages are basic to the continued viability of the nation”.

From time to time it becomes necessary for Parliament to intervene to provide the means by which such rights can be enjoyed.

Canadians have told us there are still obstacles to full and equal access to the criminal justice system in one's own official language. Court decisions, as well as reports by the Commissioner of Official Languages, confirm that barriers continue to stand in the way of the exercise of these fundamental rights. The proposed amendments will bring the Criminal Code provisions in line with judicial interpretation, thereby avoiding misunderstandings, legal debates and costly delays. One example of such difficulties involves the application of the language provisions of the Criminal Code to bilingual trials. In R. v. Beaulac, the Supreme Court of Canada has ruled that all the rights that are provided to an accused person in the context of a trial in one official language also apply to bilingual trials. Yet the lower courts are still struggling with these issues as well as with the practical manner in which bilingual trials are to be held.

The proposed amendments clarify such matters and specify that the right of an accused person to be tried by a judge, who speaks the official language of the accused, as well as the duty of the Crown prosecutor to speak that language, indeed do apply to bilingual trials. The amendments also provide the presiding judge with the necessary tools to manage bilingual trials in a fair and efficient manner. In doing so, the amendments implement recommendations made by the commissioner of official languages in 1995 that certain amendments be made to section 530 of the Criminal Code.

The commissioner's study also identified another vexing problem. The study noted that difficulties had arisen in a situation where there were co-accused who did not speak the same official language and that, in the absence of clear indications in the Criminal Code, the matter was being raised more and more frequently.

Some courts have ordered that each co-accused be tried separately in his or her official language. Such decisions have significant repercussions on court resources, as they involve a duplication of trials. They also offend the general principle that persons who are jointly accused should normally be tried together. On the other hand, some courts have ruled that the right of each accused can be reconciled by ordering a bilingual trial.

The proposed amendment brings clarity to the issue by stipulating that the situation of a joint trial involving co-accused, who do not share the same official language, warrants an order for a trial before a judge or judge and jury who speak both official languages. Such an amendment not only brings greater clarity to the code, but also ensures that a proper balance is struck between the rights of the accused person and the efficient administration of justice.

When taken as a whole, the proposed amendments are balanced and fair. They will resolve a number of problems that have been identified with the existing provisions, bringing greater efficiency and putting an end to some persistent legal debates, while also removing some of the hurdles on the road to a greater access to justice in both official languages in our country.

I now turn to the issue of sentencing and I will highlight some of the amendments that are proposed to the sentencing provisions of the Criminal Code.

Bill C-23 contains a number of proposed amendments, some of which will clarify how certain sanctions are intended to apply. Others will improve existing processes or update the law in this area. For instance, one amendment will allow a sentencing court to refer an offender, under the supervision of the court and in appropriate circumstances, to a provincially or territorially approved treatment program before sentence is imposed. In the right circumstances and where appropriate, addiction treatment programs and domestic violence counselling programs can contribute to public protection from crimes where the underlying causes are addiction or where there has been family violence.

Early court supervised access by offenders to these treatment programs can serve as a strong incentive for behavioural change and successful rehabilitation. Specialized drug treatment courts, such as the ones in place in Toronto and Vancouver, are based on the U.S. model that works to adjourn sentencing proceedings, following a finding of guilt, to allow the offender to enter and to complete a court mandated program. By delaying sentencing until the completion of the program, the offender is given a strong incentive to succeed.

Domestic violence courts or court processes have also been implemented in a number of jurisdictions across Canada. These specialized courts include education, counselling or treatment programs for offenders aimed at reducing the offending behaviour.

Allowing sentencing courts to refer offenders in appropriate circumstances to such programs before sentence is imposed will promote early access to rehabilitation and reduce recidivism, thereby contributing to the protection of the public by attacking the source of the problem at an earlier stage.

Another proposed amendment to the sentencing proceedings will provide appeal courts with the power to suspend a conditional sentence order until the appeal is determined. Currently what can sometimes happen is that the conditional sentence is served before the appeal from sentence or conviction is heard. This amendment will ensure consistency with similar appeal court powers, such as in the case of a probation order where a suspension of the sentence, until the appeal is determined, is already provided.

A related amendment, applicable to both conditional sentence orders and probation orders, would allow the court that imposed one of these two sentences the power to bind the person until the appeal would be determined with conditions similar to those imposed on an accused person who is released on bail.

One amendment is also proposed to update the provision with respect to forfeiture of computer systems and other things used in the commission of certain child pornography offences by adding to the existing list of offences the offence of luring a child by means of a computer, so a court may also order the forfeiture and disposal of computers where the offender is convicted of luring a child.

With respect to clarifying current penalties, one Criminal Code proposed amendment will expressly state that where no maximum jail term is provided in a federal statute for an offender who is in default of a monetary penalty imposed for an indictable offence, the maximum term of imprisonment will be five years.

Penalties for impaired driving offences where there is a death or injury are also clarified by an amendment so that there is no uncertainty: minimum fines and jail terms that must be imposed for a first, second or subsequent driving offence, such as failure or refusal to provide a breath sample, must also be imposed when the impaired driving offender is convicted of the more serious offences of impaired driving causing bodily harm or death.

This amendment will mean that conditional sentence orders cannot be imposed for impaired driving offences causing injury or death, as the Criminal Code does not authorize the imposition of such orders for an offence where a minimum penalty is provided.

Other impaired driving offences will tighten and clarify application of driving prohibition orders, including the application of ignition interlock device programs, with a possibility of early return to driving where the program is in place.

Bill C-23 will also increase the current $2,000 maximum fine that can be imposed for a summary conviction. This amount has remained untouched since 1985, while the monetary values for other offences have increased. It is time to update the law in this area by raising the maximum monetary penalty to $10,000. The increase will provide more flexibility for crown prosecutors to proceed by way of summary conviction, in particular where the sanction sought is a higher amount than $2,000.

Before I conclude, there is one final sentencing amendment that I feel should be highlighted, that is, the amendment with respect to victims of unwanted communications.

Such orders can already be imposed on an accused person in remand or released on bail as well as on an offender who is on probation. Current disciplinary measures in correctional institutions with respect to unwanted communications vary among jurisdictions, with most cases being addressed on a case by case basis.

This amendment will provide sentencing courts with an added means to protect victims from unwanted communications by providing the sentencing court with the power to order a convicted person not to communicate with identified persons such as victims and witnesses while the person is incarcerated.

In addition, it will be an offence to breach an order not to communicate with an identified person.

In conclusion, I wish to state that in contemplating criminal law reform we must not lose sight of the system in which these substantive provisions of the Criminal Code operate. It is important that we take the time to respond to calls for changes such as the ones highlighted today, so that our criminal justice system can most effectively contribute to the protection of society. That, I trust, is the goal of all parliamentarians in this place.

Criminal Code
Government Orders

12:15 p.m.

Liberal

Sue Barnes London West, ON

Mr. Speaker, I would like to take some time to comment on the work of the Uniform Law Conference of Canada. I believe that most the provisions of this bill came from the law conference's work. There are 46 clauses affecting different areas in the Criminal Code and in procedure.

I would like an acknowledgement by the parliamentary secretary that the bulk of the work for the bill was done by the Uniform Law Conference of Canada. In my speech, I will be talking about what it does for us in this country.

Criminal Code
Government Orders

12:15 p.m.

Conservative

Rob Moore Fundy Royal, NB

Mr. Speaker, I thank the hon. member for her work on the justice committee and on these issues and the many bills we are putting forward as a government.

As I stated, these provisions draw on input that we received from across Canada. These provisions and the streamlining are measures that provinces have called for.

I used as an example the issue of using a fax machine. That brings us into the modern era. Rather than having someone such as a police officer, who could be out on the street protecting citizens, doing the mundane task of getting an original signature, under Bill C-23 we would be able to use a fax machine.

On raising the $2,000 fine for a conditional sentence, that maximum was last revisited in 1985. As we know, the price of almost everything has gone up. This will give prosecutors the means to proceed by way of summary conviction, which will do more to unclog the court system when a fine of more than $2,000 is sought. They will still be able to achieve that greater fine by going by way of summary conviction.

I will say to the hon. member that the bill does draw on the input from a broad section of input from across Canada. Certainly this is being called for by those who work in the criminal justice system. They want us to make our criminal justice system more streamlined and more effective so that our police can be out enforcing the laws rather than going through greater bureaucracies.

Criminal Code
Government Orders

12:20 p.m.

Bloc

Marc Lemay Abitibi—Témiscamingue, QC

Mr. Speaker, my question concerns clause 6 of the bill, amending subsection 204(2) of the Criminal Code.

I would like the hon. parliamentary secretary to tell the House how far the proposed amendment is intended to go, because it is not entirely clear to me. Perhaps the committee will have to look at that if this bill is passed at second reading stage.

With respect to gaming and betting, that clause would allow the Criminal Code to keep up with the new telecommunication technologies, and Internet in particular.

Could the hon. parliamentary secretary tell us a bit more about the proposed amendment to subsection 204(2) of the Criminal Code?

Criminal Code
Government Orders

12:20 p.m.

Conservative

Rob Moore Fundy Royal, NB

Mr. Speaker, Bill C-23 makes note of “by any means of telecommunication”. The hon. member made note of that in his question.

Bill C-23 in many ways recognizes that there has been a great change in our society and in technology since many of these provisions were put in place. For example, 20 years ago people would not have contemplated that someone would use a computer and something called the Internet to lure a child and potentially commit a further criminal offence. That is why this bill seeks to attack the issue of Internet luring. It has become very serious. We have heard testimony about it over the last couple of years. We have heard disturbing reports of people using computers and the Internet to lure children, even from outside Canada.

Our Criminal Code has to evolve with evolving technology. The hon. member points out a provision in the bill that does this. As I mentioned on the subject of Internet luring, for example, this bill provides that the mode used to commit the offence, the computer, can be forfeited to the Crown. Under current law, that is not the case.

We want to put a little more teeth into our laws to allow our justice system to better protect all Canadians, but as the hon. member pointed out, we also have to recognize that society and technology are advancing and the Criminal Code has to adapt. For example, it is being brought up to date so that a fax machine can be used for some of these orders, and even fax machines are getting to be behind the times. This is an effort to keep the Criminal Code in some way up to date with the times.

As well, the maximum fine for a summary conviction is $2,000, which in 2006 is not what it was 20 years ago. Criminals recognize that. The profit margins that can be gained by criminal organizations and offenders may far outweigh the fines, so we need to bring this more into step with today's current realities.

Criminal Code
Government Orders

12:25 p.m.

Liberal

Sue Barnes London West, ON

Mr. Speaker, whether I get the answer to my question now or at a later stage, I want to flag one thing in this bill, which is that two unsworn jurors will determine whether the cause of a challenge is true in a criminal procedure. I was wondering what the rationale would be for having unsworn jurors as opposed to sworn jurors.

Criminal Code
Government Orders

12:25 p.m.

Conservative

Rob Moore Fundy Royal, NB

Mr. Speaker, I look forward to exploring in committee all areas of the bill and this question and all questions the hon. member may have, which can be put to our witnesses there. Some of the provisions dealing with jurors have dealt with not wanting to taint the sworn jurors when there are questions being put to potential jurors by crown attorneys and by defence lawyers. This is one area relating to jurors which we have to address to ensure that people get a fair trial.

Most of what is contained in Bill C-23 is there to streamline our judicial process, to make it more effective and to take out some of the ancient modes used in the past. Bill C-23 recognizes that we are living in a new era where we have to use a more streamlined system. It recognizes that technology has moved on, so we as a government have to move on in order to better protect society.

That is the main thrust of the bill. It is not to make major substantive changes. We have other bills, such as Bills C-9 and C-10, that make some very substantive changes to the Criminal Code. Bill C-23 is going to make our entire system more streamlined without making major changes to the code itself.

Criminal Code
Government Orders

12:25 p.m.

Liberal

Sue Barnes London West, ON

Mr. Speaker, I rise to speak to Bill C-23, An Act to amend the Criminal Code, which is comprised of numerous unrelated amendments in relation to criminal procedure, language of the accused, sentencing, and some other matters.

From time to time this type of legislation is required to do a general cleanup of sections that need changes for either a practical reason, a legal reason or an administrative reason, and sometimes even for substantive modernization of sections of the Criminal Code.

This is a bill that should go to the committee for fine tuning and due consideration of each section. Amendments, where and if required, could be made at the committee.

This bill was read for the first time on June 22, 2006. I must say that in the past, briefings on new bills were provided to the opposition critics either shortly after the bill was introduced or upon request. It was always up to an opposition critic whether he or she wished to accept a departmental briefing. I certainly encourage the government to provide departmental briefings. As justice critic I had asked for a briefing on this bill back in June and again over the summer months. None was provided until the first week the House resumed sitting in mid-September.

I remind the government that it is a minority government supposedly wishing to pass legislation through this House.

When the government finally allowed access to the appropriate individuals who worked on this bill and were knowledgeable, they had been instructed that no paper briefing was required. Remember that there are 46 disparate parts to the bill.

The Minister of Justice in his first meeting at committee agreed that briefings are useful and we would be receiving them.

Briefings that are given to critics months after the request, or without some written information, are not as useful as they could be. I do not wish to leave any impression that those who provided the oral briefing from the Department of Justice were in any way unhelpful; they were not; it was more the timing and the documentation. This issue is more a political decision, certainly not a bureaucratic decision.

Since I have raised this more than once and I have tried to raise it privately, I am now raising it publicly because I believe it should be fixed for future bills. Most of us, and I would hope all of us actually, came here to do good policy work. There is no need to allow a political agenda to override working in the best interests of all Canadians, which does include full and timely briefings on procedures and for the bills that are laid before this House. I trust that this situation will now be corrected and will be rectified for future bills.

Today I pushed to have a briefing on a bill that is on the order paper for later this week and I was advised that it was done.

My point is that as a critic on government bills I should not have to be pushing to have a briefing from the government on a bill. The bureaucracy, the officials, the best known people working on that bill over a long period of time should not have to beg for this type of information. That information should be shared, especially if we are trying to move forward together on some of this implementation.

This bill, as I said before, includes 46 clauses. Not all are substantive amendments to the Criminal Code. For instance, the bill establishes the general rule that in criminal matters the service of any document and proof of service may be made in accordance with provincial law. This seems incredibly straightforward. I do not see problems with this. To reflect this rule, a number of the provisions of the code have been repealed.

Many of the provisions in Bill C-23 are as a result of consultation with the provinces and territories within the context of the Uniform Law Conference of Canada. Because many people in our system would not realize who provides input into these types of amendments, I thought I would put forward some of the information that I gleaned about this organization from its website and other places.

The Uniform Law Conference of Canada operates in two sections, one being the criminal section and the other being the civil section.

The criminal section unites prosecutors for federal, provincial and territorial governments with defence counsel and judges to consider proposals to amend criminal laws which are mainly under the federal authority of Canada through the Criminal Code of Canada. Since the administration of criminal justice is undertaken by the territories and provinces, they are the administrators of the systems.

The meetings of the criminal section give the provinces and the territories a chance to ask questions of the federal government and suggest ways to make the system better and reflect the challenges they come across in their day to day operations in performing that administration service. Often they suggest changes based on identified deficiencies or detect gaps in existing law, or it could be problems created by judicial interpretation of existing law. The annual meetings of this conference are not public ones but they are attended by persons designated by their respective governments at the federal, provincial and territorial levels.

The Uniform Law Conference is a volunteer organization. Its work over the years has been extremely useful to the justice system in the land, but it has been relatively unheralded. Like many volunteer organizations in Canada, it is important to recognize and acknowledge its valuable work.

I want to pass now to some of the examples of substantive changes contained in Bill C-23. The first one I will talk about is the default maximum fine for a summary conviction which is being increased from $2,000 to $10,000. Also, we have the realm of having bilingual trials warranted where they involve co-accused who understand different official languages. I also think that this is a good advance.

Criminal Code
Government Orders

12:30 p.m.

Bloc

Marc Lemay Abitibi—Témiscamingue, QC

I rise on a point of order, Mr. Speaker. With all due respect to my colleague, I would like to be able to follow her speech, but there is no French interpretation right now. There has not been any interpretation for about five minutes. I hope that the interpreter is not dead or incapacitated. I am worried.

Criminal Code
Government Orders

12:30 p.m.

Conservative

The Acting Speaker Royal Galipeau

I wish to inform the House, including the honourable member for Abitibi—Témiscamingue, that we realize that the simultaneous interpretation system has not been working for about five minutes. It is being worked on and will be fixed shortly.