Bill C-41 (Historical)

An Act to amend the Canadian Commercial Corporation Act

Business of the House

[Don Boudria, Liberal, Minister of State and Leader of the Government in the House of Commons]

Mr. Speaker, this afternoon we will continue with Bill C-10, the marine parks bill.

Tomorrow we will consider Bill S-31, respecting a number of tax treaties.

As indicated by the deputy House leader for the opposition, next week is a week in our constituencies. When we return we will consider: report stages and third reading of Bill C-38, respecting Air Canada; second reading of Bill C-41, respecting the Canadian Commercial Corporation; report stages and third reading of Bill C-27, the nuclear waste legislation; Bill C-35, respecting foreign missions; and second reading of Bill S-33, respecting carriage by air. During that week the government may introduce another bill dealing with public safety and we would begin debate on that matter as soon as possible.

Finally, I intend to consult colleagues later this afternoon, given the uncertainty in the airline industry, to see whether there would be a favourable disposition, notwithstanding the tabling of the report on Bill C-38 today, to see if the House would agree with dealing with third reading tomorrow. I intend to consult later this day on this matter.

Canadian Commercial Corporation Act

[Pierre Pettigrew, Liberal, Minister for International Trade]

moved for leave to introduce Bill C-41, an act to amend the Canadian Commercial Corporation Act.

(Motions deemed adopted, bill read the first time and printed)

Criminal Code

[John Maloney, Liberal, Parliamentary Secretary to Minister of Justice and Attorney General of Canada]

Mr. Speaker, I am pleased to speak today to Bill C-250 which would amend part 9 of the criminal code dealing with offences against property. The proposal calls for the creation of a new offence: theft of a motor vehicle with a value of more than $5,000. It then provides for a minimum sentence of four years if convicted a second time for theft of a vehicle over $5,000.

I assume that the purpose of the legislation is to combat the very serious problem of car theft. Unfortunately the bill ignores two basic realities. First, all theft over $5,000 is already an indictable offence under section 322 and 334 of the criminal code. It is already effectively dealt with under the existing sentencing provisions of the code. More important, the legislation would do little to combat the problem of auto theft, a problem that the government is fighting on many fronts in partnership with Canadians from every province and territory.

The proposed amendment to the criminal code sweeps aside the fundamental principles of sentencing currently in place and establishes a very specific regime for an individual facing a second or subsequent auto theft. The theory is that if we catch all the repeat offenders and throw away the key for four years the war against auto theft would be won. I recognize that some convicted criminals reoffend, but imposing a mandatory four year sentence for a second offence does not make sense in light of all that we know about this offence.

Here is what we do know. The vast majority of car thefts are joyriders or individuals who use the stolen vehicle in the commission of another offence. We know this because according to the Insurance Council of Canada the rate of recovery of stolen vehicles is very high, about 70% to 80% in recent years. Further, young offenders commit almost half the reported auto thefts. How does the proposal address these aspects of the problem? We know that hard time in a penitentiary itself does little to rehabilitate offenders, so how do we address this serious problem?

That brings me to the second reality the proposed legislation fails to recognize. While auto theft has been and continues to be a serious problem, it is actively and aggressively being addressed. The problem is being attacked not only by the sanctions available in the criminal code but by every level of government, policing agency, private company, association and by individual Canadians. The existing sanctions within the criminal code and case law effectively achieve the objectives of criminal sentencing for both first time and repeat offenders.

Auto theft falls under the class of offences in the criminal code relating to thefts of property. Section 334 of the criminal code provides that the theft of property exceeding $5,000 is an indictable offence for which the individual is liable to imprisonment for up to 10 years. This provision reflects parliament's recognition that theft over $5,000 is a serious offence and it includes auto theft.

Further, joyriding is a specific offence under the criminal code to take into account the very unique nature of this crime. In addition, if an offender has prior convictions the sentencing judge, under current procedures, is bound to treat this as an aggravating factor that would result in a harsher sentence than would otherwise be imposed. A sentencing court does not stop there, however, nor should it.

The principles of sentencing in Canada require a judge to look at all the circumstances of the crime, including those of the offender and of the victim, the good and the bad, the mitigating and the aggravating. Those circumstances must be weighed in light of the fundamental principles of sentencing. The first and paramount principle of sentencing is that the sentence must be in proportion to the crime or crimes committed, and to the degree of responsibility of the offender.

Put simply, shoplifting by an 18 year old teenager versus the robbing of a convenience store by a professional criminal may both be prosecuted as theft under section 334 of the criminal code. However, to sentence both to six months in jail would not make any sense. The entire sentencing structure of the criminal justice system is built around this basic principle of proportionality. That is why, for example, there is no minimum mandatory sentence for a section 334.

The sentencing court must also consider the remaining well established objectives of sentencing: the protection of society; reparations to and acknowledgements of victims; deterrence to others; denunciation of the crime; and the rehabilitation of the offender. Unfortunately, Bill C-250 would, in too many cases, force the sentencing court to throw away these long established and useful sentencing principles.

The government clearly supports the notion that those who habitually re-offend ought to be punished to a greater extent than the first time offender. However, our current system, recently revamped in 1996 by Bill C-41, the Sentencing Reform Act, provides the necessary flexibility to accomplish this objective.

The determination of sentences therefore requires the consideration of a number of sentencing principles and objectives. In the absence of the proposal contained in Bill C-250, the existing regime enables courts to impose sentences for auto theft that are just and fair to the victim, to society and even to the offender. Many sentencing options are available which can and should be fully considered to tailor the sentence to the specific circumstances of the crime.

While the problem of motor vehicle theft is international in scope, the recent international crime victimization survey conducted in 1996 revealed that Canada's rate of vehicle theft ranked as one of the lowest among industrialized countries.

In 1995, 18 out of every 1,000 Canadian vehicle owners experienced a motor vehicle theft, compared to, for example, a rate of 33 per 1,000 owners in England, and since then we have made considerable progress. We have seen a steady decline in the rate of vehicle thefts every year to 5.3 thefts per 1,000 vehicles in 1999 according to statistics from Statistics Canada.

Recent amendments to the criminal code introduced by the Minister of Justice would make it easier to investigate and prosecute organized crime rings which would put a further dent in vehicle theft. The government is currently co-ordinating a multijurisdictional analysis of the role of organized crime in auto theft as part of our national agenda to combat organized crime.

In addition, a number of non-statutory measures have been employed over recent years to prevent motor vehicle theft in Canada, a measure that the government either initiated or partnered with other governments, agencies, organizations and individuals.

For example, we are actively involved with the provinces and numerous police agencies in the establishment of the national stolen and wrecked vehicle monitoring program designed as a comprehensive database available to the police from coast to coast. This would make it tougher to steal a car at one end of the country and sell it at the other end.

Another initiative involves car manufacturers working in conjunction with the police and insurance companies to design more effective security features for their motor vehicles. The government recently initiated the business action program on crime prevention in partnership with police and insurance companies across Canada to educate Canadians as to what they as individuals can do to fight auto theft.

All these measures are designed to reduce car theft and together with the existing criminal code provisions provide a comprehensive scheme for addressing this serious problem. While the imposition of a four year minimum sentence for a second or subsequent offence may look appealing to a few hardliners, it is simply not a realistic alternative to what already exists. It does not give the police, the prosecutors or the courts any additional tools to combat the problem. As a result, the Minister of Justice cannot support the bill.

Youth Criminal Justice Act

[Kevin Sorenson, Canadian Alliance, Crowfoot, AB]

Mr. Speaker, we were speaking to Bill C-7, the amendment to replace the Young Offenders Act with the youth criminal justice act. We were speaking about the use of alternative measures or community based programs for non-violent offenders who pose no threat to society.

We firmly believe that only through lengthy periods of incarceration where there are effective rehabilitation programs including education would violent offenders cease to be dangerous.

We are encouraged that the bill would make these educational and rehabilitation programs mandatory. When and if young offenders are incarcerated, they would be forced to go through programs so that they could be integrated back into society thus making it a safer place to live. Protection of society is the key guiding principle of the Young Offenders Act or of the youth criminal justice act.

According to an old Statistics Canada fact finder a very small percentage of violent offenders are incarcerated. It means that a very small percentage of them are actually held in custody. They are unable to go through those programs while a disproportionate number of non-violent offenders are incarcerated, limiting the space and resources needed to rehabilitate the violent offenders.

Prison is not necessary for young persons who commit minor offences. We are not asking that there be incarceration in that regard. In many cases it may be detrimental to them. They may be assaulted by other violent young offenders or they may also learn from the other ones in the prison system. After their release, depending on how we look at it, the educational program may also allow them to progress to higher levels of crime or lower levels of crime.

We fully support alternative measures but only for non-violent first time offenders. In 1995, with the passage of Bill C-41, the Liberal government legislated conditional sentences and alternative measures. My party fought adamantly but to no avail to amend the legislation limiting the use of conditional sentences to non-violent offences. As a result of the government's failure to make such amendments, judges have repeatedly handed out conditional sentences throughout the country to persons convicted of serious crimes.

There is one case that has been raised many times in the House. A man who abducted and viciously sodomized a young woman was given a conditional sentence. The young woman was scarred for life. She now lives with that in her memories and is plagued by that conditional sentence.

A few weeks ago in Ottawa, another case dealt with a woman who was convicted of attempting to hire a hit man to kill her parents and was given a conditional sentence.

The first and guiding principle of Canada's criminal law should be the protection of society. Without strict limits placed on the use of alternative measures or conditional sentences, whether it be for violent adults or violent youth, the tenet for the protection of society would be violated.

In closing I urge the government to take the step to realize and to recognize the importance of dealing with the protection of society within Canada's criminal law. Do we need changes to the Young Offenders Act? Yes, we do. We applaud the government and the minister for recognizing the inadequacies of the Young Offenders Act and for realizing that we need to make changes.

Bill C-7 falls short. It is short of what is required for the protection of society. We are dealing with our children. The throne speech dealt with our children. The protection of our children and grandchildren is paramount. Bill C-7, although it moves in the right direction, falls short of giving the tools we need to help protect society and our children.

Divorce Act

[Jay Hill, Canadian Alliance, Prince George—Peace River, BC]

moved that Bill C-237, an act to amend the Divorce Act (joint custody), be read the second time and referred to a committee.

Madam Speaker, at the outset of my remarks I thank my hon. colleague for Skeena for seconding my bill today.

I am pleased to have the opportunity this afternoon to address my proposal for what I believe to be an important amendment to the Divorce Act. This is contained in private member's Bill C-237.

The purpose of the bill is to establish a new basis for sharing the custody of children following the divorce or separation of their parents. The bill would ensure that courts grant custody of a child to both parents unless there exists evidence that to do so would not be in the best interests of the child.

In 1985, Bill C-41 amended the Divorce Act, making it easier for Canadian couples to file for and receive divorces. The changes removed most of the blame from divorce proceedings. Since then, in effect, we have had no fault divorce. It is estimated that as many as 90% of divorces are now granted without a formal court hearing. Putting this 90% figure into perspective, 69,872 of the 77,636 divorces granted in 1995 did not proceed to the courts. The downside is that the remaining 10%, or 7,764, were the subject of protracted and at times difficult litigation.

In the same year, more than 47,000 children were the subjects of custody orders. Using the same 10% figure, it means that approximately 4,700 children were exposed to ongoing tension, fighting and at times even violence between their parents. It is the children who are the sole inspiration for the bill.

During the review of the Divorce Act in 1985, significant lobbying took place to encourage parliament to take action to protect the interests of children involved in divorce and custody battles. Parliament agreed that the subject required extensive review and established a Special Joint Committee on Child Custody and Access that eventually released a report in December 1998 entitled, “For the Sake of the Children”. Unfortunately, this was two years following the passing of the amendments to the Divorce Act and many of its recommendations have yet to become law.

The committee was comprised of senators and members of the House of Commons from all parties. They set aside their partisan differences to examine and analyze the impact of custody arrangements on children of divorced or separated parents. I would be remiss if I did not take this opportunity to commend all members of the special committee for their work on this very difficult and sensitive subject.

The committee approached its work with great determination and travelled from St. John's to Vancouver and conducted 39 meetings where it heard from no fewer than 500 witnesses. These witnesses included individual parents, children, fathers' organizations, women's groups and professionals, including lawyers, judges, social workers, psychologists, physicians and others. The committee paid particular attention to what was being said by all of the witnesses and one resounding conclusion was reached. Dramatic changes were needed in the way parenting arrangements are decided following divorce.

The committee concluded that there was difficulty with the current provisions of the Divorce Act, as it focuses solely on granting custody of the children to one parent and access to the children by the other parent.

Courts rarely impose joint custody orders in the absence of the consent of both parents. It is thought that unless the parents could work together amicably and constructively enough to set up their own custody and access arrangement, joint custody would not be in the best interests of the children. There is considerable evidence to suggest that this assumption is deeply flawed.

Marital breakdown is not an appropriate time for parents to be making decision regarding the division of parental responsibility. Far too often the courts are granting custody arrangements that will result in the estrangement of children from not only the non-custodial parent but also the members of a non-custodial parent's family, such as stepbrothers or sisters, aunts, uncles and grandparents.

Bill C-237 seeks to establish that the custody of the children will automatically be granted jointly to both parents. This represents a fundamental change to the current system of custody. We will no longer look upon the process as determining custody and access but as establishing joint parenting responsibilities.

Children define themselves by their parents. It follows that it is in the child's best interests to have continuing contact with both parents, based on the child's existing relationship with each parent as it has developed during the course of that child's lifetime.

It is very important for me to clarify that joint custody does not necessarily mean that parents start out with 50% access to their children. It means that the parents will have equal decision making authority with respect to the child on issues such as schooling, religious upbringing and medical care.

It is estimated that under the current system, 86% of children reside with their mother, 7% with their father, and that only 6% live under some form of joint custody arrangement. We recognize that these patterns generally reflect the division of child care responsibilities in intact households and that many divorcing parents agree to these arrangements because it continues with arrangements that existed pre-divorce or is otherwise in the best interests of the child.

By amending the Divorce Act to automatically grant joint custody we will be establishing a new starting point for discussions regarding custody of children. In these discussions both parents will be working from a position of equal footing and the children will no longer be pawns in divorce proceedings.

The proposed amendments also contain a number of additional provisions relating to the authority of the courts in determining the best interests of the children. The court retains the ability to amend the custody agreement where it can be demonstrated that the child has suffered mistreatment by one of the parents. The court also has the ability to amend the custody agreement for a definite or indefinite period of time or until the happening of a specific event or it can attach conditions that it feels are fit and just.

There is also additional protection for parents who enter into joint custody arrangements. For example, the courts may include in any order a requirement that the custodial parent provide advance notice to the non-custodial parent of any intended change of address. In addition to being of obvious benefit to the non-custodial parent, this also provides a benefit to the children, as it allows sufficient time for changes to be made to parenting agreements and to analyze the impact of the move on the child.

In advancing these amendments to the Divorce Act, Canada joins countries such as Australia, the United Kingdom and many states in the United States in the establishment of joint custody laws.

The bill is about putting the interests of the children ahead of the interests of two divorcing parents. It is about preserving the role and contribution of both parents and their extended families in the upbringing of children.

I would hope that all members of the House would join me in supporting the legislation for the sake of the children.

Criminal Code

[Jay Hill, Canadian Alliance, Prince George—Peace River, BC]

moved for leave to introduce Bill C-238, an act to amend the Criminal Code (conditional sentencing).

Mr. Speaker, conditional sentencing was introduced in the 35th parliament as Bill C-41. Since that time, tens of thousands of conditional sentences have been handed down. Most of these sentences are for petty crimes. However, many have been handed down for crimes as serious as sexual assault, manslaughter, drunk driving and drug trafficking.

In 1997 the British Columbia Court of Appeal stated in a decision regarding conditional sentencing that “if parliament had intended to exclude certain offences from consideration, it should have done so in clear language”.

My bill does precisely that. It lists the offences to be excluded from any possibility of receiving a conditional sentence.

(Motions deemed adopted, bill read the first time and printed)