Craig Scott

[Petitions, May 10th, 2012]

Madam Speaker, I rise to present a petition from residents of Toronto—Danforth. Hundreds of residents have signed a petition protesting the raising of the eligibility age for old age security over time from age 65 to 67. This petition treats this as a direct attack on the poorest seniors, who rely on that money for daily living expenses. The petition states:

...we, the undersigned, citizens of Canada, call upon the Parliament of Canada to maintain funding for the OAS and make the requisite investments in the Guaranteed Income Supplement to lift every senior out of poverty.

[Citizen's Arrest and Self-defence Act, April 25th, 2012]

Mr. Speaker, I was upfront in my remarks when I said that I, like many people, have qualms about playing around too much with the citizen's arrest provisions. However, the committee and ultimately the government in its proposed bill has this right.

The member is absolutely correct. It is true that there is a small extension of citizen's arrest to include the arrest within a reasonable time after someone has been found committing an offence. However, there are a number of safeguards. This cannot be done if it is at all reasonable to expect the police to show up and do the job.

There are a couple of other provisions that I do not have time to go into that really attempt to send the signal that the Lucky Moose shop case with David Chen is really the paradigm. We need to work out from that, use that as the analogy and not accept this as a licence for anything resembling citizen's arrest gone wild.

[Citizen's Arrest and Self-defence Act, April 25th, 2012]

Mr. Speaker, I look forward to working with the member on the justice and human rights committee.

I do not think the premise needs to be accepted that the NDP views judicial discretion as only something that should be relinquished when it is a case of the wrongdoer. That is not at all what we have been saying. In general, judicial discretion needs to be respected in our legal system.

We are consistent that in the revised bill with respect to the very open textured rules on self-defence, we think discretion will work, keeping in mind that the judgment of ordinary citizens will be equally important. The law cannot wander too far away from basic common sense.

However, we also believe that when it comes to things like sentencing, judicial discretion is also needed. We are being consistent.

[Citizen's Arrest and Self-defence Act, April 25th, 2012]

Mr. Speaker, I will be splitting my time with the hon. member for Scarborough Southwest.

Bill C-26 demonstrates that the committee process in this House can actually work, when a bill starts out as reasonable in its aspirations and its general content. I will speak mostly to the self-defence provisions, which have not been getting as much attention during this debate, and I hope to have time to speak to citizen's arrest. If not, I am happy to answer questions.

The NDP worked in good faith within the committee and advanced a number of amendments, two of which were accepted. We feel that the legislation could be better yet, especially, from my point of view, on the citizen's arrest portions. However, we also feel that it has been somewhat improved and that, in general, it started out as worthy legislation. For that reason, we believe this bill should be supported, as my colleagues have been indicating.

With respect to the legislation that was originally tabled, I must commend the parliamentary secretary, the member for Moncton—Riverview—Dieppe, for his speech on December 1, 2011, when he introduced the bill. His speech was a model of thoughtfulness, tightness and elegance of exposition and, indeed, care taken to explain the bill's purpose and its relationship to the existing law and to the general principles of criminal law. That speech should be taken seriously when the legal profession begins to interpret Bill C-26, when it becomes part of the Criminal Code, with respect to the provisions on self-defence of the person, defence of property and citizen's arrest.

What is very interesting about both the reforms in Bill C-26 and the speech of the parliamentary secretary is the contrast with the approach of the current Criminal Code provisions. This is partly due to the origin of the current provisions in one of the original versions of the Criminal Code well over a century ago. However, the present Criminal Code provisions are best characterized as a patchwork quilt of relatively detailed provisions that are responding to a range of concrete situations. Partly because of that level of detail, these provisions have for some time been criticized, decried by some as needlessly complex and increasingly confusing, as we have had layer upon layer of judicial interpretation over the years.

The Bill C-26 provisions are, in contrast, a model of simplicity and distillation to the core principles in their essence. I dare say that their formulation owes a lot, although I cannot say this is for sure the case, to the civilian tradition within our multi-juridical heritage, with its preference for unifying principle and generality when we are codifying the core areas of the law.

A passage from the parliamentary secretary's speech speaks to this approach. When the hon. member for Moncton—Riverview—Dieppe spoke to the self-defence provisions in Bill C-26, he stated in part:

If we were to ask ordinary Canadians if they think self-defence is acceptable, they would say that it is acceptable when their physical integrity or that of another person is threatened. I think they would also say that the amount of force used should be reasonable and should be a direct response to the threat.

The reforms proposed in Bill C-26 are centred on those basic elements. Because of the general nature of these ideas, one law based on these fundamental principles should be able to regulate all situations that arise involving defence of the person. We simply do not need different regulations for every set of circumstances. All we need is a single principle that can be applied to all situations.

There is a lot of merit in the conceptual clarity and the focus on unifying principle that is represented by that passage. However, the common lawyer in me does worry a bit if the idea of “a single principle” is seized upon to the exclusion of what he also mentions, which is “all situations”.

General principles only live and breath and become coherent in the real world where, hopefully, most Canadians live, when they are brought to bear on concrete situations to allow more nuanced rules to emerge gradually. It is for this reason that it is a virtue of the new clause 34 in Bill C-26 on self-defence that it is grounded in a general idea, that of reasonableness of response, but this is also expressed, which is important, as “reasonableness in the circumstances”. That is clause 34(1)(c). However, it is all the better that clause 34(2) then goes on to list nine factors that are relevant to the contextualized approach to the general principle of reasonableness.

The NDP was very concerned that these factors would themselves be principled and at the same time useful for real world decision-making of ordinary citizens, then of police and prosecutors and, finally, of judges in their exercising of judgment as to whether a self-defence situation has arisen. In particular, an NDP amendment that was accepted modified the chapeau for clause 34(2) and that amendment is most welcome. It appears before the list of the nine factors and states:

In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors....

That sets up well the various factors. This phrasing interacts with factors (e), (f) and (f.1) in the provisions to provide a good basis for the criminal law to be responsive to the very particular challenges of applying self-defence in the context of abusive relationships, which is an area I know many members in the House have some concern about, especially where women have been subjected to patterns of violence and psychological abuse by their male partners. I think it is important to recognize that the parliamentary secretary himself, in his speech on December 1, recognized this when he said:

Another factor is whether there were any pre-existing relationships between the parties, including any history of violence and abuse.

This last factor is particularly important in cases where a battered spouse must defend against an abusive partner. As the Supreme Court has noted in the landmark case of Lavallee, it is sometimes difficult for a jury of citizens to understand how a battered spouse might stay in an abusive relationship or how the person might come to understand the patterns of violence of the person's partner. These cases do not arise often but when they do, sensitivity to these factors is crucial.

Having praised the parliamentary secretary's speech on December 1, I would also like to add that the response speech from the previous justice critic, the member for St. John's East, was also a model of constructive and thoughtful parliamentary engagement. While he expressed general support and appreciation for the intent behind the bill, he also raised questions aimed at ensuring that, during the committee process, the overhauled existing provisions of the Criminal Code did not throw the proverbial baby out with the bathwater. In that respect, he said:

We need to examine it [Bill C-26] very carefully. We need to ensure that by making changes, we are not throwing away 100 years of precedent and all the advice that the courts have given. If we are starting off with a blank slate and a whole new law, it may take another 10 or 20 years of case law to understand what that means. Do we really need to go down that road?

I will end by saying that it is really important to understand that there is a conundrum built into law reform. Does judicial interpretation and the perceived understanding of the law go by the wayside when new law is enacted, especially when such detailed provisions are replaced by general provisions in criminal law? It must surely be the case that we, and by “we” I mean citizens and the legal profession, do not reinvent the law of self-defence from a whole cloth. We must engage with what was the living law under the old provisions and forge a new living law under the new ones that is in communication with what went before it.

[Protecting Canada's Immigration System Act, April 23rd, 2012]

Mr. Speaker, the comments of the hon. member were a reasoned argument based around the theme of generosity. I am having trouble following some of the logic, and I wonder if she can help.

Once a person is designated a foreign national and then is found to be a genuine refugee, a person in need of protection, the rest of the bill then goes on to treat them in a way completely different from regular refugees. They have to wait five years for permanent residence, they cannot sponsor their families as a result of that, and they do not get travel documents for five years. This is a radically different approach from that provided to normal refugees, yet the system has found them to be refugees. What conceivable basis is there for treating refugees in this different way?

[Protecting Canada's Immigration System Act, April 23rd, 2012]

Mr. Speaker, I wonder if the hon. member would do us the honour of speaking a bit more on a safe country with respect to the whole question of designating an entire country as safe when we know that in many situations, including examples in eastern Europe that he was relying on, there may be vulnerable populations worthy of receiving refugee status. The situation with respect to the Roma in countries like Hungary is deeply problematic. Gay and lesbian groups within Mexico will tell us that it is not a safe country throughout Mexico for them.

Why has the government removed the possibility of designating only part of a country or sectoral groups and adopted this incrediblly broad-brush approach?

[Protecting Canada's Immigration System Act, April 23rd, 2012]

Mr. Speaker, I congratulate the member on her recent appointment as the critic for immigration.

There are numerous implications for children spread throughout Bill C-31, and I cannot touch on all of them.

My hon. colleague referred to one of them, a kind of Sophie's choice situation for the parents, about whether children under the age of 16 will stay with them in detention or be relinquished to the state.

Another issue is the age of 16 years. International human rights law generally, and the convention on the rights of the child in particular, indicates that adulthood starts at 18 years of age. This legislation is particularly problematic in that the age limit of 16 years has been set.

Finally, as I mentioned earlier in my answer about cessation and family reunification issues, when permanent resident status takes five years to achieve, that also is an issue. Often a family member, a child or a parent, will make it to Canada and then will not be able to see other family members for at least five years.

[Protecting Canada's Immigration System Act, April 23rd, 2012]

Mr. Speaker, the preface of the member's question does a great job of setting out the issue underlying the question.

There are at least two aspects of Bill C-31 that come up against the reality the member described. One is the designation of so-called safe countries. The notion that there is a safe country is a problematic concept, but the idea of quickly changing conditions makes it even more problematic. The fact that Bill C-31 removes the notion of a panel of advisers to the minister on determining what countries will be safe makes it even worse.

Under the cessation regime, the minister or the government could apply for cessation, which could be for a period in time when things had changed; the government comes on the scene when it thinks things are safe in order to send some permanent residents back to the country, but then conditions could change again. The idea of changing conditions has to be taken into account.

[Protecting Canada's Immigration System Act, April 23rd, 2012]

Mr. Speaker, I am privileged to rise for my inaugural speech in the House of Commons since my election as the member of Parliament for Toronto—Danforth.

Permit me to begin by first thanking the people of Toronto—Danforth for having placed their trust in me in the March 19 by-election. I recognize that the bar has been set very high, in that I have both the distinct honour and the distinct challenge of succeeding a truly great member of the House, the Hon. Jack Layton, whose untimely passing this past August 22 triggered an outpouring of emotion among Canadians such as our country has rarely known.

I pledge to represent the vibrant community of Toronto—Danforth tirelessly, with integrity and following the example set by my predecessor. Like Jack Layton, I will do my utmost to contribute to Parliament both constructively, working with others to secure just and sensible results and by resolutely defending the progressive values of the people of Toronto—Danforth.

In that spirit, I turn now to address the substance of the legislation before the House on second reading of Bill C-31. This omnibus bill is intended to amend a variety of existing statutes, most notably, IRPA, the Immigration and Refugee Protection Act, and the Balanced Refugee Reform Act.

The Balanced Refugee Reform Act is itself mostly a far-ranging effort to amend IRPA and the ink is still wet on it, in that it only enters into force at the end of June.

It is important to recall that the Balanced Refugee Reform Act was ultimately a product of hard work and mutual compromise from all corners of the House, having been adopted with eventual all party support. Less than a year after it achieved a majority in the House last spring, the government is abandoning compromise and is steamrolling ahead with its own particular uncompromising view of refugee policy.

In support of this characterization of the government's Bill C-31 legislative initiative, allow me to briefly discuss a few, and I emphasize only a few, of the disturbing additions or changes to refugee law that Bill C-31 will usher in if it is permitted to pass.

First, the minister, if he deems it to be in the public interest, may characterize a refugee claimant, or refugee claimants, as having arrived in Canada irregularly. This decision would turn these claimants into designated foreign nationals, which I will subsequently simply refer to DFNs. Crucially and shockingly this designation as DFNs would subject them to automatic detention.

In contrast to regular refugee claimants whose detention must be reviewed after 48 hours and again in 7 days and then every 30 days thereafter, these irregular claimants could remain for 12 months before there was a first review of their detention. Indeed, for good measure, Bill C-31 explicitly adds a provision saying that review would be precluded before the end of 12 months. Thereafter, their detention would be reviewed in six-month increments.

Little could run further afoul of the international refugee law's strong presumption against detention which requires a stringent necessity test to be made and of the international refugee law's requirement that the necessity of detention be subject to early and then frequent review.

Under the Balanced Refugee Reform Act, a refugee claimant has access to a full appeal to a Refugee Appeal Division panel. However, now, under Bill C-31, a designated foreign national, this second-class refugee created by the act, could no longer access the appeal process established in the Balanced Refugee Reform Act. If the first instance decision maker, and that is the Refugee Protection Division, denied the person's refugee claim, not only would he or she have no right of appeal, but he or she would be subject to immediate deportation.

It is true that a DFN refugee claimant still may seek what is known as a judicial review, but it is important to note, in light of the answers being given in the House before the break, that this is not the same as an appeal. It is a much more limited process. It is found in the current law. It removes the automatic stay of deportation found in the current law so that in many, if not most, cases judicial review will occur after a person has been removed from the country.

What if a designated foreign national is successful in the refugee claim and is recognized as a refugee? Surely at that stage one would think Bill C-31 would provide that the successful claimant would be treated like any other refugee, but unbelievably, no. To start with, the designated foreign national who is recognized as a refugee continues to wear that designation as a state imposed badge of dishonour. He or she is subjected to reporting requirements to which other refugees are not subjected.

More atrociously, an accepted refugee who started out as a designated foreign national cannot apply to become a permanent resident of Canada for five years after being found to be a refugee. This could result in the refugee not becoming a permanent resident for six or seven years, assuming there will be processing delays with some applications. Compare this to a regular refugee who is actually required to apply for permanent residence status before 60 days are up.

One might ask, what is the big deal? If a refugee gets to stay in Canada, what difference does it make if the individual has permanent resident status or some sort of refugee status? One huge difference is that the Immigration and Refugee Protection Act requires that a person be a permanent resident before the person is able to sponsor family members, such as the person's spouse, children, or parents, to immigrate to Canada. Thus, under Bill C-31 irregular refugees would have no hope of reuniting with family in Canada for at least five years.

Currently, family class applications in this country are often processed at a snail's pace. It is not uncommon for it to take three years for a child or a spouse to be admitted and sometimes up to six years for parents. It is no stretch to say that a refugee who started out as a designated foreign national may have to wait 10 years for family members to join him or her.

If that is not enough, a designated foreign national refugee will not even be able to travel outside Canada to spend time with family, for example, in a country other than the country of origin which the refugee fears going back to. Why is that? Bill C-31 decrees that such a refugee will not be given travel documents until he or she becomes a permanent resident, that is, until at least five years have passed, despite the fact that the refugee convention requires that travel documents be issued to refugees once they are “lawfully staying” in the host country. Fortress Canada thus becomes prison Canada for the designated foreign national refugee. If he were still alive, Kafka could not have written Bill C-31 better if he tried.

It does not end there. The DFN provisions apply retroactively to March 2009. After Bill C-31 becomes law, the minister could decide to designate the Tamil refugees who arrived on the Ocean Lady in October 2009 and the Sun Sea in August 2010 as irregulars. The only part of a DFN regime that does not apply retroactively is the detention regime.

Finally, there is the stunning change in the law with respect to cessation of refugee status. This basically means that after the government applies to have a refugee status removed, that simultaneously removes the permanent resident status, which subjects the individual to being removed from the country.

Time does not permit me to go into many other problems with the bill, such as problematic changes to the safe countries regime, the implications for children, the radical cuts in the time that refugee claimants have to prepare their cases, and the advent of a biometrics regime which comes with no privacy safeguards and allows Canada to share this data with other countries.

There is much in the bill that requires close and exacting scrutiny once it gets to committee. I hope that government members along with the opposition will take the committee process seriously and not back the government in what is ultimately repressive legislation. At some point, MPs have to stand up for their conscience as well as for their constituents.

[Radio-Canada/CBC, April 5th, 2012]

Mr. Speaker, yesterday we saw the effects of the Conservative philosophy of Canadian culture: drastic slashing of people and services at the CBC, $115 million in cuts and at least 650 employees now gone. Millions of Canadians who rely on the CBC for local programming will pay the price, Canadians who want to see and listen to Canadian artists and Canadians who value commercial-free radio. When will the government finally put an end to its undermining of public broadcasting in this country?