Paul MacKlin

[Budget Implementation Act, 2005, May 30th, 2005]

Mr. Speaker, the hon. member's private member's bill to repeal the disallowance power has been debated in the House. Members of the Liberal Party, the NDP and the Bloc all rejected his proposal.

The hon. member's procedure, timing and sense of priorities all attracted wide-based criticism. The hon. member attempted to spark a debate about the same subject, but on hypothetical terms, by his subsequent question to the Minister of Justice and Attorney General.

The hon. member would like the House to debate the status of the power and hypothetical scenarios that might give rise to the consideration of its invocation perhaps by some governments in some distant future.

The Minister of Justice, quite appropriately in my view and I suspect in the view of many on all sides of the House, replied that he would not speculate on such a hypothetical question. It was not necessary for the minister to say more, but since the hon. member has asked for a further explanation, let me say that the subject he is raising has no relevance to current realities. In addition, anything said in the abstract on a controversial subject on a hypothetical basis when nothing requires that anything be said really serves no useful purpose. The minister quite rightly refused to be drawn into this hypothetical debate.

The hon. member favours the repeal of the disallowance power and is intent on furthering his one member crusade to raise the issue as worthy of priority consideration by the House and all provincial assemblies for constitutional amendment. The fact is it is simply not on anyone's radar screen and the government, like members of the other parties who have spoken to the hon. member's private member's bill, has no intention of changing that.

When the hon. member's motion for the repeal of the constitutional disallowance and reservation powers came forward for discussion in February, there were many reasons provided by members of three parties in the House why this was neither an appropriate process nor an appropriate time for this discussion.

Let me begin by very briefly repeating that there is no reason for these constitutional provisions to be a pressing concern or priority for anyone in the federal or provincial governments and in fact, they are not.

The concern expressed by the hon. member is more academic and hypothetical than real. Certainly, to my knowledge at least, it is not a concern seen by anyone as pressing in any way. There is no apparent merit in selecting these provisions in isolation as a new unilateral federal constitutional reform initiative seeking to engage, as it must and after the fact, all the provinces.

The Liberals, the Bloc and the NDP all expressed agreement that this is not the way to go about making constitutional amendments. That shared view was independently arrived at and expressed. It is founded on the wisdom of experience and practicality and the need to focus on real issues and priorities.

In addition, in my view the hon. member's concerns behind this motion and his question to the Minister of Justice regarding the disallowance power focused far too much on the formal text rather than the constitutional practice thereunder.

The hypothetical concerns raised by the hon. member can be raised in theory regarding many written provisions of our Constitution, or any constitution for that matter. Constitutions by their nature consist of written laws and constitutional conventions supplemented by unwritten practices and understandings of a political nature.

If I may use a perhaps overused cliché, the hon. member's concerns reflected in this question lose sight of the forest for the trees. Like the Minister of Justice, I do not propose entering that forest when there is only a hypothetical interest in its exploration.

[Age of Consent, May 19th, 2005]

Mr. Speaker, I welcome the opportunity to participate in today's debate on Motion No. 221, which proposes to restrict sexual activity between adolescents and adults by amending the Criminal Code to raise the age of consent to sexual activity from 14 to 16 years of age.

The apparent goal of the motion is laudable, namely, to better protect youth against sexual abuse and exploitation, but I do not support the means chosen to achieve this goal. The protection of our youth against sexual abuse and exploitation is very important. It is, however, equally important to ensure that whatever we do to achieve the objective, we get it right.

Unfortunately, the motion does not get it right. Before I discuss the motion, I think it is important to remind hon. members about what the existing age of consent criminal laws are.

Currently, the age of consent to sexual activity is 18 years of age where the relationship is exploitative, such as where it involves prostitution, pornography, or where there is a relationship of trust, authority or dependency. Where none of these exploitative circumstances exist, the age of consent is 14 years. However, it is important to be clear about this: any non-consensual sexual activity, regardless of age, is a sexual assault.

It is important to recall that these laws apply to all forms of sexual activity, from sexual touching to sexual intercourse. Accordingly, all sexual activity below the age of consent is prohibited.

Motion No. 221 proposes to raise the age of consent from 14 to 16 years, presumably to address the exploitative type of conduct. Yet it does not propose, and this is very important, the creation of any exception, such as, for example, for youth who engage in consensual sexual activity with peers.

There are many views about when and at what age it is appropriate for young persons to engage in sexual activity, but the fact of the matter is that young persons do engage in sexual activity and they do so at perhaps a younger age than some may think.

On May 3 of this year, Statistics Canada's The Daily reported that by age 14 or 15 about 13% of Canadian adolescents have had sexual intercourse. The percentage was almost the same for boys and girls, 12% and 13% respectively. From this, one might presume that youth are engaging in other or lesser forms of sexual activity at an even earlier age.

Under Motion No. 221, it would be okay for two 16 year olds to engage in sexual activity, but it would not be okay for a 15 year old and a 16 year old to kiss. If we consider how Motion No. 221 might impact on these youth, it seems pretty clear that it would criminalize at least 13% of Canadian youth and probably more. Is this how we protect our youth? By making them young offenders? And just who are we protecting them from in these circumstances?

This is why I do not support Motion No. 221. I prefer instead the government's broader and more effective response to this very issue. This response is found in Bill C-2, an act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act.

Bill C-2, which is currently before the justice committee, proposes to create a new category of prohibited sexual exploitation of a young person who is over the age of consent for sexual activity, that is, who is at least 14 years of age or older and under 18 years.

Under this new offence, the courts will be directed to infer that a relationship with a young person is exploitative of that young person by looking to the nature and circumstances of that relationship. The bill directs the court to consider specific indicators of that exploitation, including the age of the young person, any difference in age between the young person and the other person, the evolution of that relationship, and the degree of control or influence asserted over that young person.

The bill provides a clear direction to the courts to infer that the relationship is exploitative of the young person after examining the nature and the circumstances of the relationship and the youth himself or herself.

In other words, Bill C-2 recognizes that chronological age is not the only indicator of vulnerability. Instead, it recognizes that the particular circumstances of some youth, including 16 year olds and 17 year olds, may put them at greater risk of being exploited. It recognizes that the way in which a relationship develops can also be an indicator of exploitation.

For example, Bill C-2 will apply to better protect youth who are lured over the Internet by persons who would prey on their vulnerability. Such encounters usually occur secretly and quickly. Bill C-2 says to the courts: take this into account in the evolution of the relationship as an indicator of exploitation.

Bill C-2 provides increased protection to all youths between ages 14 and 18 and not just the 14 year olds and 15 years olds, as Motion No. 221 proposes.

Bill C-2 also focuses the law's attention on the wrongdoer instead of on whether the young person ostensibly consented to that conduct. Bill C-2 says in fact that young persons cannot legally consent to be sexually exploited.

Motion No. 221 seeks to restrict sexual activity between adolescents and adults. In contrast, Bill C-2 seeks to protect youth against sexual exploitation by any person who would prey on the young person's vulnerability, whether that person is considerably older than the young person or close in age.

As I said at the outset, while I can appreciate the apparent underlying rationale of Motion No. 221, I cannot support it. It falls far short of achieving the objective and at the expense of those whom it seeks to protect.

I agree with Bill C-2's response to this issue. I respectfully submit that Bill C-2 gets it right. This motion does not.

[Justice and Attorney General of Canada, May 19th, 2005]

Mr. Speaker, pursuant to Standing Order 32(2) it is my pleasure to table, in both official languages, the annual report concerning investigative hearings and recognisance with conditions December 24, 2003 to December 23, 2004.

[Criminal Code, May 17th, 2005]

Madam Speaker, I rise to speak today to Bill C-293, an act to amend the Criminal Code, theft of a motor vehicle, introduced by the hon. member for Langley.

In summary, Bill C-293 would amend the Criminal Code to provide that everyone who commits theft of a motor vehicle is liable to a mandatory minimum penalty on the first offence of $1,000, or imprisonment for three months or both. On the second offence the minimum penalties would be raised to $5,000 as a fine, or imprisonment for six months or both. On subsequent offences, the offender would be liable to a minimum punishment of a $10,000 fine, or imprisonment of one year or both.

Bill C-293 would also provide that where the offence is prosecuted by way of indictment, there would be a five year maximum term of imprisonment and where the offence is prosecuted by way of summary conviction, there would be a two year maximum term of imprisonment.

I would agree with my hon. colleague that auto theft is a serious issue for all Canadians. Having said that, I am not convinced that the manner in which it is addressed in Bill C-293 is the best way to deal with the problem. I therefore cannot support the bill in its present form.

To begin with, there are numerous offences in the Criminal Code to address theft of a motor vehicle. These offences include the general theft and fraud provisions carrying a maximum jail term of 10 and 14 years respectively on indictment. Furthermore, offenders who commit what is commonly known as joyriding may be charged with the offence of taking a motor vehicle without consent. This offence carries a maximum term of six months imprisonment, or a fine of $2,000 or both.

Additionally, a person in possession of a stolen motor vehicle may be charged with possession of stolen property as a crime. Where the value of the motor vehicle exceeds $5,000, the maximum offence, as I just mentioned earlier in a question, is a penalty of 10 years' imprisonment.

All too often, some offenders take it upon themselves to flee from law enforcement in stolen vehicles, often at very high rates of speed. If this occurs and no one is injured, the offender may be charged with the offence of flight from a peace officer and this offence carries a maximum term of five years of imprisonment. Where flight results in a death, then the offender is criminally liable to a term of life imprisonment for this terrible crime. This type of behaviour cannot be tolerated and I believe that the available sentence for this crime delivers a strong message.

In some motor vehicle thefts, the offender may cause significant danger to the public through the manner in which they drive the stolen vehicle. In this regard, if dangerous operation of a motor vehicle occurs, the Criminal Code provides that where a person is injured, the offender is liable to 10 years' imprisonment. Further, if this dangerous operation results in a death, then the offender would be liable to a maximum jail term of 14 years.

Similarly, if the circumstances surrounding the theft result in criminal negligence causing death, those convicted are subject to a penalty of life imprisonment, the most serious sentence in the Criminal Code.

We must also recognize that the theft of automobiles is sometimes undertaken in a systematic manner by organized crime. In this regard the Criminal Code provides a number of additional tools that can apply when auto theft is committed for the benefit of, at the direction of or in association with a criminal organization. These additional tools provide for the possibility of consecutive sentencing and reduced parole eligibility.

Therefore, it is clear there are numerous offences covering the range of behaviour, each carrying significant penalties including life imprisonment, which can be used to tackle the incidents of motor vehicle theft in Canada.

I would now like to outline the policy deficiencies which, in my view, are present in Bill C-293. This private member's bill provides for mandatory minimum sentences for first, second and subsequent offences.

As we are well aware, Canada uses mandatory minimum sentences with restraint, preferring an individualized sentencing approach that gives the court the discretion to fashion a sentence that is proportionate to the gravity of the offence and the conduct of the offender, considering also any aggravating or mitigating factors.

Therefore, the use of mandatory minimum sentences, as found in Bill C-293, could be contrary to the established Canadian sentencing principles, such as proportionality and restraint in the use of imprisonment. In addition to mandatory minimum penalties, Bill C-293 would provide for a maximum term of imprisonment of two years when the offence is prosecuted by way of summary conviction.

Currently, the highest maximum penalty for a summary conviction offence under the Criminal Code is 18 months imprisonment, which is usually for offences involving sexual assault and the infliction of bodily harm.

Therefore, a two year maximum for the theft of a motor vehicle would provide this offence with the highest summary conviction penalty in the Criminal Code and would represent a stark departure from the current sentencing regime in Canadian criminal law. Furthermore, Bill C-293 would also reduce the maximum punishment available for someone who commits motor vehicle theft.

The most frequent charge in vehicle theft cases is theft over $5,000. The punishment for this offence is up to 10 years imprisonment on indictment. Under Bill C-293, a person committing a theft of a motor vehicle would only be liable to a maximum of five years imprisonment.

In other words, there is a serious inconsistency here in saying that auto theft is such a serious offence that it requires the use of mandatory minimum penalties but, at the same time, Bill C-293 would cut the maximum term of imprisonment for its commission in half.

As I have indicated at the outset of my remarks, I would agree with the hon. member for Langley that theft of vehicles is a serious issue. Auto theft appears, at first blush, to be single faceted, although further analysis would show that the problem is quite complex. It comprises a multitude of crimes and underlying motives, including the involvement of members of criminal organizations.

To this end, it is important that we ensure our laws are being used to their fullest potential in addressing the criminal behaviour and whether in fact there are gaps in existing legislation which need to be filled.

In this regard, in January, at the meeting of the federal, provincial and territorial ministers responsible for justice, ministers discussed motor vehicle theft and the need to ensure that appropriate penalties are in place to target those who steal vehicles and recklessly threaten the lives of others.

As a result of this meeting, all ministers agreed to have their officials collectively study motor vehicle theft to determine whether a separate indictable offence is needed and whether increased penalties would be appropriate to reflect the seriousness of the crime.

Provincial involvement in the assessment and crafting the tools to tackle this form of crime is very important. We should ensure that this federal, provincial and territorial process is allowed sufficient opportunity to properly consider the underlying issue.

Finally, education, community programming and crime prevention should also play an essential role in combating the incidence of motor vehicle theft. These tools are an important element in fully responding to the criminal behaviour in Canada.

We agree with the hon. member that this is a very important matter that needs to be debated and discussed. Hopefully, through the federal, provincial and territorial ministers, and debate in this House, we will find what is necessary to better assist us in dealing with this problem of motor vehicle theft. However, today I believe that the hon. member's bill, although well-intentioned, does not meet that threshold.

[Criminal Code, May 17th, 2005]

Madam Speaker, I do not think there is any doubt everyone agrees that car theft is a problem that needs to be addressed.

The hon. member talks about messaging and I think it is very important that messaging exist. Right now theft over $5,000 carries a maximum penalty of 10 years. What sort of messaging is being sent when his conviction by indictment would have a maximum penalty of five years, in other words, cutting the maximum penalty in half?

[Criminal Code, May 12th, 2005]

Mr. Speaker, there have been discussions among the parties and I think you would find unanimous consent for the following motion. I move:

That Bill C-13, an act to amend the Criminal Code, the DNA Identification Act and the National Defence Act, be deemed read the second time, considered in committee, reported, concurred in, read a third time and passed.

[Committees of the House, May 12th, 2005]

Mr. Speaker, following an editorial amendment consented to by all parties, I have the honour to present, in both official languages, the 10th report of the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness.

In accordance with its order of reference of Tuesday, November 2, 2004, your committee has considered Bill C-13, an act to amend the Criminal Code, the DNA Identification Act and the National Defence Act, and agreed on Tuesday, May 10, 2005, to report it with amendments.

(Bill C-13. On the Order: Government Orders:)

May 12, 2005--Minister of Justice and Attorney General of Canada--second reading, report stage and third reading of Bill C-13, an act to amend the Criminal Code, the DNA Identification Act and the National Defence Act.

[Justice, May 10th, 2005]

Clearly, Mr. Speaker, trafficking in persons is a fundamental violation of human rights, both globally and domestically. Shortly we are going to be introducing a bill dealing with human trafficking. Once that bill has been set before the House and there has been a chance for it to be fully debated and considered at committee, I am sure that whatever resolution we need to bring forward to deal with this very difficult problem will be found.

[Justice, May 10th, 2005]

Mr. Speaker, clearly the Gomery commission is well established. We set out the guidelines that follow in a normal way and fashion and it complies with the normal rules that we would expect of a judicial commission. I think that is appropriate.

[Committees of the House, May 6th, 2005]

Mr. Speaker, I am grateful for the opportunity to rise in this debate. I move:

That the debate be now adjourned.