Russell MacLellan

[Government Appointments, October 16th, 1995]

Mr. Speaker, if the agent is unable to get the information and unable to get the files then the agent cannot do the job if the agent is not granted a postponement by the court. If this is the case, as I believe it may well be, then certainly there is nothing whatever to discredit the agent.

As I have said, the Minister of Justice is looking into this matter.

[Government Appointments, October 16th, 1995]

Mr. Speaker, what the Minister of Justice said on these appointments still holds true.

The matter to which the hon. member refers is an incident where perhaps more through an administrative mix-up the new agent was unable to get the files for the court. It had nothing to do with the agent's competence. The matter is being looked into by the Minister of Justice.

[Criminal Code, September 21st, 1995]

Mr. Speaker, on June 13, 1995 the House gave third reading to Bill C-68, an act respecting firearms and other weapons. Bill C-68 is comprehensive legislation concerning firearms which has been extensively researched and debated by members of the House and the House of Commons Standing Committee on Justice and Legal Affairs. It is now being studied by the Senate Committee on Legal and Constitutional Affairs.

Bill C-260, which was presented by my colleague from British Columbia, who previously spoke, is a bill which I believe is basically similar to Bill C-68. Bill C-260 was introduced before the Minister of Justice introduced Bill C-68 and the hon. member might have introduced a different bill had the provisions of Bill C-68 been known to her at the time.

I want to examine the differences between the two bills. I would like to start with the issue of mandatory minimum sentences.

Section 85 of the Criminal Code now provides for a minimum term of one-year imprisonment for the use of a firearm in the commission of an indictable offence and three years for any subsequent offence, in addition to the sentence imposed for the underlying offence. The maximum is 14 years.

Concerns have been expressed with respect to the way section 85 has been operating because of the large number of charges which have resulted in acquittal or in the charges being withdrawn. Sometimes section 85 charges are withdrawn as a plea bargaining

mechanism. Bill C-68 will address the problems relating to section 85 of the Criminal Code.

Specifically, the bill states expressly under each of the 10 selected serious offences that the offender will be subject to a mandatory minimum sentence of four years imprisonment if the offender uses a firearm during the commission of the offence. The penalty for using a firearm is blended with the penalty for the 10 offences to which this applies. These offences are: causing death by criminal negligence, manslaughter, attempted murder, causing bodily harm with intent to wound, sexual assault, aggravated sexual assault, kidnapping, hostage taking, robbery, and extortion.

When in force Bill C-68 should eliminate the abuses tied to the existing application of section 85 of the Criminal Code, while Bill C-260 would not solve these problems.

I believe the intention of the hon. member is to get tougher on criminals who use firearms in the commission of an offence. In fact the minimum penalties found in her bill would treat offenders who use firearms to commit serious offences more leniently than Bill C-68. Her bill would simply subject all persons who commit offences with firearms, regardless of the severity of the crime, to a three-year minimum prison term, while Bill C-68 ensures that persons convicted of serious violent offences committed with a firearm receive, at a minimum, a four-year prison term.

Bill C-68 also addresses in a comprehensive and effective fashion the problem of replica and imitation firearms. Bill C-68 defines a replica as a device that is not in itself a firearm but is designed to resemble "precisely or with near precision a real firearm". In contrast a device such as a toy water gun that clearly does not resemble in the last detail a real firearm is not a replica but an imitation firearm. Because replicas are virtually indistinguishable from real firearms, their future sale, purchase and importation will be strictly controlled under Bill C-68 while imitation firearms, such as toy water guns and the like, will continue to sold in stores.

When it comes to a crime, the potential danger is very high, whether a real firearm, a replica or an imitation firearm is used. Bill C-68 will solve evidentiary problems which now exist because of the current section 85 in the Criminal Code. Section 85 encompasses only real firearms. Bill C-68 will include within section 85 presently in the Criminal Code real firearms, imitations and replicas.

Bill C-260, presented by the hon. member, would punish offences committed with replicas but not with imitation firearms. Moreover the bill would do nothing to control dissemination of replicas in Canadian society. In effect, Bill C-260 would only come into play after someone had been hurt or killed while Bill C-68 includes preventive action against violent crime by controlling the availability of replicas and imitations.

I would like to speak to the new offences that the hon. member proposes to add to the Criminal Code. The actions the hon. member seeks to criminalize are already included in Bill C-68 or in the current Criminal Code. For instance, clause 96 of Bill C-68 makes it an offence to possess a firearm or other weapon that the person knows was obtained through the commission of an offence.

As well, the Criminal Code currently contains an offence for theft and clauses 103 and 104 of Bill C-68 already include offences for illegal importation of firearms. These clauses also include illegal exportation of firearms and therefore are more comprehensive than the ones proposed by the hon. member.

Bill C-260 presented by the hon. member would increase the mandatory minimum sentence for these two offences from one year to three years' imprisonment. The House indicated it to be an appropriate punishment for various firearms offences in Bill C-68 that a one-year minimum sentence is stiff, demonstrating the potential lethal nature of firearms and the danger their illegal and unsafe possession pose to Canadian society. At the same time it is not so harsh as to encourage judges and juries to find ways around them where some sympathetic factual circumstances exist.

These minimum sentences are very important. We want to send a message about the illegal use of firearms.

Keeping people in prison is costly and raising minimum sentences from one to three years, as the hon. member suggests, would cost Canadian taxpayers an enormous amount of money. Moreover, where the facts warrant I am confident that judges and juries will impose harsher sentences. We have to have some faith in our judges and juries. There is a role for minimum sentences but basically the length of the sentences and the incarceration must rest with our courts.

The hon. member proposes to make a person who improperly sells a firearm liable for subsequent criminal actions committed by the purchaser of that firearm. In other words, a person who does not check for a firearms licence before selling the firearm would not only commit a serious office of illegal transfer but if the buyer commits a murder Bill C-260 would make the seller liable for the murder or murders as an accomplice, even though the seller knew nothing of the purchaser's murderous intentions. Such a result seems to me to be out of proportion with the seller's culpability.

Moreover, based on the jurisprudence of the Supreme Court, it would also be contrary to the Canadian Charter of Rights and Freedoms because criminal liability would not be imposed, not on the intentions of the accused to commit criminal acts and the

actual doing of these acts but also on the actions that the person did intend and did not foresee.

I cannot support that provision. There are severe penalties in Bill C-68 for illegal transfer. These penalties do not have the risk of contravening the charter of rights and freedoms.

I appreciate what the hon. member is proposing. A lot of what she is proposing is included in Bill C-68. The areas that are not I do not think add anything other than potential contraventions of the charter and completely reducing the authority of our courts in very important areas.

[Capital Punishment, September 20th, 1995]

Mr. Speaker, I am very pleased to have the opportunity to speak on this motion. It is one that has been mentioned many times in the House.

Members opposite have pointed to capital punishment as being the panacea, the solution to the problems of our criminal justice system and the crime that exists in our communities. I certainly do not agree with that. I think they are on the wrong track. The job is much bigger than that and we should not look to a simplistic solution that will not have the effect society wants which is the reduction of crime in our communities.

The member for North Vancouver said that the government will probably bring up the fact that the murder rate has gone down since capital punishment was abolished. He is right, I am. Before capital punishment was abolished the rate was 3 per cent. In 1987 when the last major debate on this subject took place the rate was 2.42 per cent. In 1994 it was 2.04 per cent. The murder rate is continuing to go down.

The member talks about the Canadian Police Association voting unanimously in favour of reinstating capital punishment. He is pleased to quote the Canadian Police Association when he talks about capital punishment but he is not pleased to quote the Canadian Police Association when he talks about gun control.

He also talks about the fact that there has not been an execution, capital punishment in Canada since 1951. Yet the rate was higher in about 1965 when the debate started than it was in 1951 and the rate today is higher than in 1951. He is saying that it was not doing away with capital punishment that decreased the murder rate, but it had to be something. There were three debates on capital punishment between 1965 and 1976.

Funny, strange, the murder rate started to go down when gun control was first introduced in 1978. The fact is if we are going to quote statistics there have to be reasons why these things happen.

The motion calls for a referendum at the time of a federal election. It has never been the policy in Canada to have a referendum at the time of a general election. It may be fine in California, but look what was brought forward in California, the three strikes law. A man stole a piece of pizza from a child and is now going to be serving 25 years because it was his third conviction. It did not matter that it was not a violent crime. It was his third offence and he is in prison for 25 years as a result of that. That law was the result of a referendum at the time of an election.

In Canada we want a federal election that is going to elect the politicians who are going to pass the laws. We want the people to concentrate on that. I do not think there is an overwhelming desire for a referendum on capital punishment. Members opposite may think there is, but I am not hearing that. I have to admit that I am not in favour of capital punishment. I do not think it is correct. Taking another life is not the answer.

Only the victims can tell you there is nothing more excruciating than losing a family member or a loved one through a violent crime. There is no question about that. It is completely hideous and absolutely indescribable. However there is nothing that is going to bring back a life. If anything could, there is no question the Minister of Justice and government members would do it. That is not going to do it.

What is the result of a death penalty? Half of the states in the United States that have reinstated the death penalty are not using it. In the ones that are sometimes year after year, appeal after appeal the death penalty is postponed. The execution is postponed and there are final appeals to the governor of the state.

These are emotional roller coasters for the families of the victims, no question. The constant appeals, the attention in the press of these delays are not in the interests of the families of the victims. That is not the answer.

What we need is a sound policy of crime prevention. The leader of the Reform Party talks about capital punishment and members of the Reform Party talk about capital punishment. We have to look at what is causing the crime. It is not going to do any good as far as the victim is concerned to punish the criminal. It will help society. It is a deterrent. It will give the family of the victim some feeling that society is conscious of the life that has been taken, but it is not going to do anything for the victim. The victim has been murdered.

What we want to do is protect potential victims, to stop these murders from happening. That is one of the reasons the Minister of Justice and this government have instituted a safe streets policy. Certainly gun control is one part of it and is a good part of it. Sentencing policy, Bill C-41, is part of it. The DNA provision is another part of it. We are going to be bringing forward more legislation regarding DNA.

We never hear about those things. All we hear about is the violence. Let us talk about how we can stop the violence. This is what the Minister of Justice wants to do. This is what this government wants to do and it is what the government is doing.

We also want to talk about how we can deal with young offenders, another very serious problem. Crime prevention is an integral part of the safe streets policy. Crime prevention begins with the day a child is born. Punishment is after the fact. Punishment is a part of it but the most important thing is to prevent crimes from happening. We never hear that from the Reform Party. We

never hear discussion about how we can prevent crime from happening.

The time a child can be most influenced from becoming a child at risk or a future young offender is from the day the child is born to its third birthday. We have to do more in the early formative years, even in the early years when a child is in school.

We have to have the co-operation of the provinces. We have to have co-operation and understanding of all members of the House of Commons on that very important principle and basic attack on young offenders, on future offenders and future murderers.

Certainly we have had great examples of hideous crimes in this country in the last few months. Homolka and Bernardo is one terrible example of hideous murders. The policy of this government is not to piggyback on the hideous nature of these crimes to sensationalize a proposal for a referendum that is not going to do what the people of Canada want.

I have a very strong interest in this because Donald Marshall is a constituent of mine. In that crime the murder happened in my constituency. Guy Paul Morin is another example. We can say that those are only isolated incidents but they are two people who are still alive as a result of those isolated incidents and there are others.

We need to find lasting solutions. That is what this government intends to do.

[Treatment Of Municipal Sewage, June 20th, 1995]

Mr. Speaker, the member for Leeds-Grenville brings forward a very interesting proposal. There is a new twist I have not heard before which is the aspect of the tax credit.

With the passage of Bill C-68 in the House of Commons and the expected passage of the same bill in the Senate later this year, we will be registering all firearms. As the member for Leeds-Grenville has said, some people may not want to register firearms.

Frankly, I do not think it will affect the gun owners themselves, but for those who have inherited firearms or have had firearms lying around the house, they may not want to go through that procedure if it is not their intention to use those firearms. Of course I think mainly of long guns, rifles and shotguns. Firearms can be sold. Handguns, even the prohibited ones, can be sold to people who have similar types of firearms. They can be turned in at any time or they can be sold out of the country.

It is correct that when there is an amnesty it focuses the idea in people's minds so they become more conscious of turning in their firearms. A lot of people will turn in firearms without any compensation but certainly more people would turn in their firearms if there is compensation.

The main problem is the cost which would be considerable. One never knows how many people would take advantage of the amnesty but we would have to expect that there would be a cost.

The other question that has to be looked at is if prohibited weapons are being turned in that can be purchased on the street or out of a trunk of a car for a very small amount, then these people with the tax credit would receive more than they actually paid for the firearm. That would only take place for a short while. Once registration came into effect they would not be able to do that. However, it is certainly something that should be examined further.

I know the Department of Justice and the Minister of Justice will be discussing this idea with the Department of Finance. Something may result from this but it is too early to speculate whether the idea of the hon. member for Leeds-Grenville will result in a solution or not. We will have to wait until these discussions take place.

[Questions On The Order Paper, June 14th, 1995]

(a) The preamble of the treaty between Canada and India on mutual assistance in criminal matters makes specific reference to Canada and India desiring to improve the effectiveness of both countries in the investigation, prosecution and suppression of crime, including terrorism related crime.

The Minister of Justice is unable to comment on the full scope of India's Terrorist and Disruptive Activities (Prevention) Act (TADA) and on the extent of its extraterritorial reach, if any.

(b) The mutual assistance treaty does not make India's TADA legislation part of Canadian law. The treaty generally provides for assistance relating to the gathering of evidence for the purpose of a criminal investigation or prosecution pending in the state requesting assistance. The assistance contemplated under this treaty does not include the arrest of persons for the purpose of their return to the requesting state through deportation or extradition.

Requests for assistance made to Canada under the mutual assistance treaty are executed in accordance with canadian law once their execution has been authorized by the Minister of Justice. For this purpose the requests must contain information prescribed by the treaty. This includes the relevant law of the state requesting assistance.

There is no requirement under the treaty that an offence under investigation or prosecution in India also exist in Canada (referred to as double criminality requirement). This is common in mutual assistance treaties.

Canada may refuse or delay assistance based on grounds set out in the treaty. The treaty provides that assistance may be refused where executing the request would impair Canada's sovereignty, security, or public order and that assistance may be postponed where executing the request would interfere with ongoing investigations or prosecutions. These grounds are intended to protect the fundamental interests of Canada, where Canada is the requested state. They can be relied on in appropriate cases based on a consideration of the circumstances of each case in view of the treaty and the relevant law and could apply to

a request by India pertaining to an investigation under the TADA legislation.

[Criminal Code, June 13th, 1995]

Madam Speaker, this is a very interesting debate. I have been listening to it very carefully.

I am really very mystified about how this whole question of sexual orientation has managed to take off as such a pre-eminent feature of Bill C-41. As was said earlier, we are talking about a bill that has 70 pages dealing largely and most importantly with the question of sentencing, which we have wanted for some time. There are some very good provisions in this bill that are much needed in our society, particularly with respect to our criminal justice system.

What we seem to gravitate to is one little section. It is not even a whole section; it is just a little itsy-bitsy part of a section. It is in section 718.2 that we refer to the words "sexual orientation".

The hon. member for Scarborough West has done a lot of research on this, and I commend him. He says that sexual orientation should be defined. He mentions that the other aspects-race, colour, sex, and gender-are defined. However

they are not defined in the bill. They may be defined, but they are not defined in the bill because these are incidental terms.

What we are dealing with is the fact of sentencing. That is why it is called a sentencing bill. There are no rights given under this bill to anyone, regardless of race, religion, language, or sexual orientation. We are not saying that anybody in those categories has any rights.

What we are saying is that if somebody is attacked and it can be proven that they were attacked because of their sex, religion, language, or sexual orientation, such as the hon. member for Burnaby-Kingsway has said about some people going into a restaurant and saying "Let's go and get those faggots", then there is objective evidence that they are being attacked for that reason. Because they are being attacked for that reason, it is a question of bias, prejudice, or hate based on those principles. If the people then go to court and are found guilty, they will be sentenced. In the sentencing it will be determined that the reason they committed the crime was because of bias, prejudice, and hate on their part in relation to language, religion, or sexual orientation. If that is the case, then their sentence is greater than if that was not the case.

A member says that is already being done in the courts across the country. Why then, one may ask, do we have it in the legislation? Because it is not being applied equally across the country. It is being applied differently in each province and we want to have it applied equally. Members have said, hate, bias and prejudice are onerous terms, principles, and sicknesses, which creep into adverse and unpleasant actions in our society. We want to apply it equally across the country.

Why, if we want to put it in the act, do we have to use these terms? The reason we have to use terms like religion, language, sex and sexual orientation is because the Supreme Court of Canada stated in the Zundel and Keegstra cases that they have to know what we mean by hate. What is it we are talking about when we talk about hate? Are we talking about hate based on sexual orientation, religion, or language, or are we talking about hate based on someone beating somebody else up because they do not like the Vancouver Canucks or the Toronto Maple Leafs? Is that the sort of hate? Hate can be used in so many ways.

We want to define what kind of hate we mean and what we are talking about when we go to court on this principle. So we put in examples, but we also say that is not the last of it. We also say "national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation or any other similar factor". We are not saying that anything can be hate; we refer to a similar factor that relates to the terms we have previously set forth in that list.

We are not giving any rights at all under this. The bill does not define sexual orientation because it is not a principle of the bill. The worst that can happen by not defining sexual orientation is that someone may make a mistake about what sexual orientation is in the sentencing process.

If some people want a definition of sexual orientation it should be put in the Canadian Human Rights Act. That is where such a definition would apply, not in a sentencing bill.

In Motion No. 10, brought forward by the member for Burnaby-Kingsway, he mentions changing the bill. Instead of saying race, national or ethnic origin, religion, language or sexual orientation, he wants it to say "the actual or perceived race" and so on.

We do not need that because perceived is not a factor either. If someone is attacked because of language or sexual orientation or race it does not matter in the sentencing process if that person actually spoke that language, was of that sexual orientation, was of that race or not. The fact they were actually attacked based on bias, prejudice or hate and whether the victim was correctly identified in that hate, bias or prejudice does not matter. It is the reason for the assault that the sentence is given.

If the person is convicted on the basis of that attack, based on that bias, prejudice or hate on questions of language, sexual orientation or religion, whether the victim was or was not, if the attacker thought the victim was, there is still the hate and there is still going to be the enhanced sentence. It does not matter if it was perceived or not perceived but what the objectively stated intention of the person committing the offence was.

This is a good bill. We are getting carried away, led astray by various factors. Everything in the bill is important but what is most important is what the bill wants to do and can do.

[Criminal Code, June 13th, 1995]

Madam Speaker, I rise on a point of order. There were two motions in that grouping.

[Criminal Code, June 13th, 1995]

Mr. Speaker, I would like to speak to the motions brought forward in this first grouping.

Motion No. 4 was brought forward by the member for Saint-Hubert. I realize what the member is intending and has the suggested wording that would reduce the scope of the terms of the bill. The Department of Justice looked at this and felt the recommendation would be inconsistent with the use of the verb tenir elsewhere in the text. Therefore if we changed it here we would run the risk of putting other parts of the legislation in a tenuous position.

With respect to Motion No. 3, I am very surprised when the member for Crowfoot talks about cost cutting in conjunction with the Canadian Police Association and wanting to save money by doing away with alternate measures. The inmate population is exploding. The years between 1989-90 and 1993-94, four years, the federal inmate population increased by 17 per cent, with total expenditures in 1993-94 at $880 million for federal corrections and $990 million for provincial corrections.

The annual cost of holding an inmate on average in medium and maximum security was $39,000 per inmate per year for federal institutions and $35,000 per inmate per year for provincial institutions.

That indicates the dramatic increase in the actual cost of incarceration. The member for Crowfoot says we should not have alternative measures. If we do not start working toward alternative measures what we will have is people in incarceration costing an extremely large sum of money.

Many are in incarceration. One-third of the people in incarceration are there for non-payment of debt. We want to get away from that. Who is being punished in a case like that when we have people in incarceration for non-payment of debt?

In many cases they cannot afford to pay. It is of no purpose to put them in incarceration. The alternate measures have been in federal legislation for many years in the Young Offenders Act. The experience of the provinces in administering alternative measures programs has been sufficiently positive that they have asked us in the Department of Justice, the Minister of Justice in particular, to include similar measures within the Criminal Code for adults.

Deleting those provisions would go against a perfectly reasonable request being made by the provinces. The availability of alternative measures exercised under the programs authorized by the provincial attorney general within enabling federal legislation respects the division of powers between the Government of Canada and the provincial government and recognizes provinces are in the best position to develop and administer programs related to the offenders targeted by those measures.

The availability of alternative measures will better enable provinces to manage their costs in respect to court time and the use of correctional facilities and resources. It seems inconsistent that the Reform Party, which has focused much of its attention on bringing costs under control, would deny provinces the tool to better manage cases appearing before their courts.

Deterring and deleting alternative measures would reduce the scope of action available to the courts and to the provinces as they administer criminal justice and would not strengthen either this bill or the criminal justice system in general.

The member for Crowfoot, on behalf of the Reform Party, said he put forward federal standards. We want to have some kind of standards but alternative measures are looked at in different ways in different provinces.

The problem with the program is some areas do not have the facilities to provide the alternative measures. That is a severe problem and it means in some areas of the country alternative measures provisions or possibilities are either non-existent or severely curtailed.

We could say because of that we will scrap alternative measures altogether so they are not put in place anywhere in the country but that really does not achieve anything. It denies the people in the areas that have the alternative measures possibilities from utilizing these possibilities.

Also, we could say if one has created a certain seriousness of offence that person is not eligible. When we are dealing with cases, with human concerns and with human considerations, who is to say that where somebody who has been flaunted and taunted in incarceration would be better put back in incarceration than into a program where he would have to spend some time working in the community or for the benefit of the victims?

Also we want to be able to offer the program in a positive nature and to improve on it. We heard in committee that one problem with the alternative measures was that when young people were involved in this they were not being supervised. That is the case in some instances. We have to strengthen these programs. I think there are various ways of doing that.

It has also been stated by the Reform Party that we should have a central registry because there is no record of those who are put on alternate measures and we do not know if they have been before the courts before or if they have been on alternative measures. If there is no record the next time they appear it would be considered a first offence and they would be on alternative measures again.

That is not the case. It is not CPIC, it is not on a national computer but it is in local court files. There is a general record on alternate measures programs.

Alternate measures programs work in different ways in various provinces. It is used as a diversion program in Nova Scotia. Offenders are put on the diversion program before they come to court and a record of this is kept in the police files. In other provinces they appear before the court and instead of being sentenced after the case is heard they are put on the alternative measures program. The programs are working. Young people have been rehabilitated to prove it.

We are not saying we will have the same success rate with adults because the older a person becomes the less the possibility of rehabilitation, but we do feel there will be success. Quite often incarcerating these people costs the Canadian public up to

$100,000 per person in some instances, which is the case in some young offenders facilities.

The average cost of keeping someone incarcerated in a federal institution for one year is $39,000. If we can get better results or even if we can get the same results in alternative measures we should examine them.

We should leave the possibility with the provinces that want these programs for adults. We should give the learned judges and justices the ability to place people on these programs if it is deemed the best course to take.

[Firearms Act, June 13th, 1995]

The only difference will be that there will be registration, the possession licence for the owner and a registration certificate for the firearm. Nothing else will change.

With respect to the owner of the firearm coming to the door to show and give pertinent information to an inspector, that is exactly what can happen with an agreement between the two parties. That is not a difficult situation.

With respect to the right to bear firearms, the hon. member is talking about the bill of rights in the U.K. which was passed in the 17th century and gave the right to bear arms. He will also note there has been very meaningful gun control in the United Kingdom. If it applied to the right of every individual to have any kind of firearm he or she wanted, then certainly that gun control would not have taken place.