Bill C-429 (Historical)

An Act to amend the Criminal Code (destruction of national flag)

Criminal Code

[John Cannis, Liberal, Scarborough Centre, ON]

Mr. Speaker, as we close this debate, let me take this opportunity to thank the members who spoke to Bill C-429. I will close by referring to some of the words that my good friend from the Conservative Party said. He said it has created dialogue. This really is the intent here.

The member of the Alliance who spoke earlier said that there was a previous initiative from the Alliance party and that there will be another coming from that party. As well there was one from my colleague from Haldimand--Norfolk--Brant, along with my own. I also appreciate the words from the parliamentary secretary as well.

When members refer to the legislation that is in use in the United States, I agree. What the Americans did though was brought forth legislation which was challenged. If we go back, there were certain acts at that time of defacing, destroying and burning of American flags. The Americans brought in legislation even though the law had been challenged and struck down. Today or in the most recent years I do not think one sees that type of activity unfolding in the United States.

Should we have legislation in place or make amendments to the criminal code? It might be challenged and struck down, but between now and then a certain message would put out that this type of activity would not permitted. If it was challenged, then we could approach the challenge at that time.

The most important thing for me, and I know I speak for many members in the House and for many Canadians, is that the dialogue has commenced and the issue has been raised. Rest assured the issue will continue to be there and will keep coming back. I will be the first person to say that my private member's initiative is not perfect, but it is a start and it is something on which to build.

I would like to thank all hon. members. I will not use the tactics of asking for unanimous consent. I refuse to do that. I brought forward Bill C-429 knowing that I would commence dialogue with all parties, so that the voices of my constituents and of all Canadians could be heard on the floor of the House. Members also could rightfully express the pros and cons of this type of an initiative, and I fully appreciate that. I think all of us have learned something today. As other members come forward in the future, I am confident that we will learn more.

I thank all my colleagues who participated in this debate.

[Paul MacKlin, Liberal, Parliamentary Secretary to the Minister of Justice and Attorney General of Canada]

Mr. Speaker, I am pleased to have the opportunity to speak to this important issue, one that involves freedom of expression and dignity. It is about one of our important national symbols. In other words it is a debate over values.

This issue deeply touches all Canadians. The Canadian flag symbolizes, as we have heard today, democracy, freedom, liberty and Canadian unity. The Canadian flag and all it represents is the pride of all Canadians.

To better understand the issue before us it is important to recall the origins of our national flag. The significance of our national flag has occupied discussions on various occasions. The words that best describe our flag are those spoken by the Hon. Maurice Bourget, Speaker of the Senate, in February 1965 during the inauguration ceremony held on Parliament Hill before parliamentarians and thousands of Canadians. Unknowing of the issue that would one day arise before us he rightly stated:

The flag is the symbol of the nation's unity, for it, beyond any doubt, represents all the citizens of Canada without distinction of race, language, belief or opinion.

It is to this last item that I draw the attention of the House. Canadians are proud to be a tolerant and respectable people. We value our diversity of culture, religion and belief. We have incorporated into our constitution the fundamental principles of this wonderful country.

One of these, derived from tolerance, is freedom of expression. It is well understood that the actions to be prohibited by Bill C-429 amount to the expression of a political opinion by act or gesture. As troubling as that may be to some or perhaps even to most of us as Canadians there are other fundamental values that need to be protected which our flag represents.

I propose that what really upsets us is the message conveyed by the bill. The reality is that the message transmitted, a disagreement with government policy, is disturbing, but however disturbing the message may be putting limits on the expression of political opinion is nothing to take lightly.

We cannot justify criminalizing an act because we do not like the message it conveys. As a matter of principle criminal law in a free and democratic society such as Canada must be reserved for wrongful acts that seriously threaten our fundamental values of society. The freedom to express dissent is a fundamental value and Bill C-429 would limit that expression.

These acts simply do not amount to actions that require a criminal sanction. We must keep in mind that expressions judged distasteful by the majority are not in and of themselves a basis for restricting free speech in a free and democratic society.

Other countries have refrained from criminalizing the desecration of their flag, such as Ireland and the United Kingdom. The United States has attempted in the past to do so but the legislation was judged to be unconstitutional. It would be very likely that the proposed legislation represented by Bill C-429 would not survive a charter challenge in Canada. Freedom of expression is protected by section 2 of the Canadian Charter of Rights and Freedoms and flag burning is recognized as a form of political expression.

In short, Bill C-429 would go against the fundamental values that our nation's flag stands for, that is, representing Canadians without distinction as to belief or opinion.

I share the views of the vast majority of Canadians that desecrating our national flag is truly an offensive behaviour. Those who commit such acts do nothing to forward their cause. However, while it is objectionable behaviour, because it is a form of political expression, it is protected by the charter and cannot be criminalized.

[John Cannis, Liberal, Scarborough Centre, ON]

moved that Bill C-429, an act to amend the Criminal Code (destruction of national flag), be read the second time and referred to a committee.

Mr. Speaker, I will take the opportunity as we open this debate to clarify for everybody andthe audience out there as well what the bill is all about and what the intent is of Bill C-429. Through this initiative I am trying to make a change to section 56 of the criminal code, which would state as follows:

56.1(1) Every one who, without lawful excuse, wilfully damages or destroys in any manner, burns, defaces, defiles, mutilates, tramples upon or otherwise desecrates the national flag is guilty of an offence and liable on summary conviction--

That is really what we will be debating here today. Within the initiative are two subclauses, one for a first time offence and one for a second offence. I will not elaborate on them but I will explain what the exception is within this initiative. It is as follows:

56.1(2) No person is guilty of an offence under subsection (1) if the person disposes of a national flag described in subsection (3) because the national flag has become worn, soiled or damaged.

That is the exception.

I also feel obliged to talk about the definition of national flag, as was asked of me during the subcommittee presentation I made in regard to what this includes and what it does not. I would like to clarify that now. The bill states as follows:

56.1(3) In the present section, “national flag” means the national flag of Canada, the official flag of a province or territory in Canada or the national flag of another country.

As members know, this is not an issue that is coming before the House for the first time. Not too long ago, my colleague from Haldimand--Norfolk--Brant debated this same issue in the House. We talked about the merits of bringing forward such legislation. I am also well aware that another colleague, from the Alliance Party, the hon. member for Souris--Moose Mountain, has a similar bill before the House. Why am I saying this? It just goes to prove to colleagues and the nation as a whole that this is something that we and our constituents have been talking about. It is not a partisan issue. It is not whether it is the Liberals, the Conservatives, the Alliance or the NDP: This is an issue that affects each and every one of us, Canadian or not, citizen or not.

Let me also point out, especially to my colleagues in the Bloc who have asked certain questions about the definition, that sometimes we do something and realize a month or a year down the road that we should make an effort to fine tune, refine, et cetera. I went further with this initiative than previous initiatives did to make sure that we would include all the flags representing, first, Canada and then each and every province and territory. That of course satisfies each and every Canadian no matter where they live.

It seems so appropriate that my bill is before the House today, just two days before we will be celebrating the 20th anniversary of the charter and the repatriation of the constitution. I cannot help but relate this debate to why we have the charter.

In past debates I went further and said how we make laws to protect various parts of our environment, to protect us as individuals. We make laws to protect nature, to protect endangered species, to protect our waters and to protect our children. As well, I know that there is now an effort underway by all party members in the House to ask that the criminal code be tightened with respect to child pornography and the Sharpe case in B.C. We are not happy, and rightfully so, with that, so what are we doing? We are taking a specific law that is in the criminal code and tightening it up, hopefully. What are we doing here? We are trying to create something that is not there.

As we are about to celebrate the charter, I want to take the opportunity to ask my colleagues and Canadians from coast to coast, what the charter does for us. The charter is meant to protect people from overzealous government actions and oppressive laws. The charter guarantees that certain fundamental rights will be protected, including freedom of expression, religion and association; the right to a fair trial; minority language protection and equality rights; freedom from cruel and unusual punishment; and security for person. I underline for person. Why do I underline that? We make laws to protect us. Who will make the law to protect our national symbol that cannot speak for itself?

It is okay to proudly display our national symbol when we are at the Olympics. We have taken it into battle. Our peacekeepers proudly display it. It is recognized proudly throughout the world. However it also seems to be okay to take the flag and burn it. I do not agree.

What are we doing as a people? The charter is there to protect persons. If that is the case and laws are made to protect people, then the people have an obligation to make laws to protect national symbols, to protect endangered species, to protect the environment, et cetera. As the debate unfolds today I encourage people to add their voices.

We know the bill may not be pursued beyond this debate but at least we are kick-starting the debate. I hope other people who will be speaking in the House will express that view, as Mr. Alexandre Cyr did in his letter to me not too long ago.

Mr. Cyr was a Liberal member of parliament from Gaspé between 1963 and 1984. He sent me a letter saying “Keep plugging away. Good work”. He also sent me a copy of the pledge to the Canadian flag, which reads as follows:

To my Flag and to the country it represents, I pledge RESPECT and LOYALTY

Wave with PRIDE from sea to sea and within your folds, keep us ever UNITED

Be for all a symbol of LOVE, FREEDOM and JUSTICE

God keep our FLAG

God protect our CANADA

If God is there to protect our flag then we have an obligation to make sure that the means and the ways are in legislation to protect this symbol that cannot speak for itself.

Some members and some governments might not wish to pursue this thought today, but when the charter came in 20 years ago there was much criticism. I read in the paper just the other day how all of a sudden the percentage of support for our charter is growing. It is at the highest it has ever been. It is over 92%. Young Canadians today are saying that it is a good thing and a right thing. If we had asked the same question 20 years ago I am willing to bet others would have said, no, that it did not do this and it did not do that or it is too much of this and too much of that.

By commencing this dialogue today through my bill, Bill C-429, I am hoping that the debate will carry across the country and that people who genuinely care will send in their letters to the minister to move ourselves emotionally.

I have often heard that while there was an initiative in the United States, it was contested. How many other laws do we have today that are being contested and or changed? Does that mean we should not try? If Marconi, Edison or some of the previous inventors had not tried we might not have some of the technology that we have today.

I am not saying the bill is perfect. Maybe some of the language has to change in the future but I am willing to bet that if the minister of justice in any government moves forward on this at some point in time down the road we will find the way.

It pains me to see certain demonstrations. I believe in people's right to demonstrate but I do not believe they have the right to destroy private property while demonstrating, such as a window display or a car. If people wish to demonstrate they should make their placards and demonstrate. The flag, our national symbol, is not what people demonstrate for or against.

It is not only post-September 11 that has caused us to be more concerned. It has caused us to be more concerned but we had demonstrations pre-September 11. We saw what happened in the battle in Seattle. We saw what happened at the conference in Quebec and other parts of the world. Flags were being burned. All that does in my view, and I am sure I speak on behalf of the majority of Canadians, is raise rhetoric and animosity and cause people to move apart as opposed to gathering around the table and creating dialogue for resolution.

Mr. Speaker, I know you will remember well when the then right hon. prime minister John Diefenbaker brought in the bill of rights in 1961. It was the right idea at the right time. It was a different world and we had different thoughts. We did not have this global village in which we now live. We did not have the World Trade Organization, the G-7 and G-8. We did not have all these forums. We also did not have the hostility we have seen in most recent years on earth.

I commend Mr. Diefenbaker for bringing in the bill of rights at that time but it was not part of the constitution. As a result it did not have the supreme law of the land to back it up. It was the right thing. It started something and perhaps that is why we are here today. By bringing forward the charter we all of a sudden took it a notch higher: more protection, more rights.

I commend former Prime Minister Diefenbaker and all my colleagues who in the past spoke to the bill introduced by my colleague from Haldimand--Norfolk--Brant. I know there is another bill coming from the Alliance Party and I commend it for bringing this type of private initiative forward to the House.

I hope each and every member in the House as well as those who are in committee or in other offices will read Hansard tomorrow or the next day to see my comments and the comments of others that will be put on the floor over the next little while.

I hope the machinery that is there will find the means and the ways to bring forward some kind of legislation that will send a signal to those who wish to demonstrate that, yes, they can demonstrate but that they should honourably protect the dignity of our first symbol, that being the Canadian flag, and each and every flag that represents our provinces and territories because they too are reflective of Canadian citizens who live in different parts of the country. They too deserve as much respect as our Canadian flag.

Privilege

[Mauril Bélanger, Liberal, Ottawa—Vanier, ON]

Mr. Speaker, I would like to draw your attention to a situation that, in my opinion, prevents me from doing my work as a member of parliament properly, and therefore is a question of privilege. Incidentally, I did give notice of this question, pursuant to the standing orders.

I am new to this, so I would ask your indulgence and a bit of patience.

On Friday March 15—beware the ides of March, by the way—the Standing Committee on Procedure and House Affairs presented its 48th report, which determined that four items, Bills C-292, C-415, and motions M-414 and M-432 would be deemed votable. The other business from the February 28 draw, would therefore not be votable: motions M-34, M-431, M-329, M-357 and M-435, and Bills C-429, C-304, C-391 and C-407.

Bill C-407 is among this group, and it is a bill that I sponsored. The bill came about as a result of the Montfort hospital saga, this saga has tremendous importance for minority language communities in this country, be they French or English.

Furthermore, I can attest unequivocally that this bill meets all five of the criteria approved by the House in order to be considered eligible for “votable” status.

On March 13, I appeared before the Subcommittee on Private Members' Business and presented a document demonstrating that Bill C-407 met the criteria. The one question that a committee member asked dealt with the substance of the bill, and did not question the criteria. In fact, the chair of the sub-committee, the member for Hull--Aylmer congratulated me by saying:

I must congratulate you, because you are one of the rare members to respect the spirit of the five minutes to demonstrate that your bill is acceptable, rather than selling us on the merit of the bill, because the idea is not to sell us on the merit. The idea is to sell us on the fact that it should become a votable bill.

Then, on March 15, to my great surprise, I learned that Bill C-407 would not be deemed votable.

Despite my dissatisfaction and my frustration with a system that I consider to be cumbersome to say the least, I tried to find out why the subcommittee and the standing committee did not deem it votable.

Before the draw on February 28, one votable item remained in the order of precedence. The subcommittee could therefore add nine, but decided to add only four. Since the refusal to declare votable Bill C-407 and other items, such as Bill C-429 or Motion M-431, which, by the way, I also urge you to review, is therefore not due to a lack of room, it must therefore be because it did not meet the five criteria. If the refusal is not based on these criteria, the situation is even worse than we imagine.

I will not go over the five criteria for the House. They are readily available, and you are probably more familiar with them than anyone, Mr. Speaker.

I spoke with four of the six subcommittee members. I was trying to understand. One told me that he thought that the bill was not federal in nature. Another one said that was not it at all. A third one told me that I should have spoken to him about it in advance, and added that this was not the best way of moving the issue forward, that it would be preferable to refer it to a committee. The fourth one refused to tell me anything at all, even after admitting to a certain incongruity in the situation. The other two people did not return my call.

It was therefore impossible for me to find out why or which of the principles the bill did not comply with.

The reality is this that I am faced with the following situation, along with all other members whose motions were declared non-votable: the decision is one that has been made behind closed doors, with no explanation, and no means of appeal.

Even prisoners who are refused parole can know the reason. The public can take part in meetings where reasons are made public. Any citizen of this country can request information under the Access to Information Act and if this information, or part of it, is refused, the government has to give the reason.

Yet in the Parliament of Canada, in the House of Commons, a member is not entitled to know why his bill or motion is not votable.

This bill addresses something of importance to millions of Canadians throughout the entire country and I cannot be told why it has been declared non-votable. One of my primary roles is that of legislator.

This tool available to members, private members' business, is vitally important. Yet when my bill is blocked and no reason is given, my privileges as a legislator are being attacked. If we are not to be told why it is held up, how can we move a bill ahead? This is where I deem that my privilege as a parliamentarian has been breached.

This past weekend, I read several reports of previous rulings, and came to realize that this is a very particular and very difficult question.

In what I hope is the very unlikely event that you should decide this is not a matter of privilege, I would like to also, with your leave, raise a point of order.

According to the standing orders, private members business is to be determined as votable or non-votable based on merit and not on the number of supporters. In order to determine this merit, the Standing Committee on Procedure and House Affairs, as well as its Subcommittee on Private Members' Business, have set certain criteria. These were amended in 1999 with the 70th report of the standing committee, tabled in the House on April 20.

Let me quote from the December 11, 2001 evidence of the Standing Committee on Procedure and House Affairs. It states:

We have the criteria and when I design a bill or motion and have it drafted, I try to have it meet those criteria. Then you find out that the subcommittee on votable items doesn't like it, so they don't support making it votable. To me, if you're going to have criteria, everything that meets the criteria should be votable, or why bother the hell having criteria?

What I sense is that the subcommittee, of which I am part, despite its claims to the contrary, ends up passing judgment on whether the motion or bill that has gone through the lottery, if you're lucky enough to have your name drawn, meets our standards of being worthy of a vote or not. And therein lies the problem. If it meets the criteria, however many criteria there are, it should be votable.

I don't see how you can have it one way or the other. You either throw out the criteria and say this silent group of people is going to be judge, jury and executioner of all private members’ business--because that is what is happening now--or you have criteria and make everything votable if it meets the criteria.

Those were the words of the hon. member for Prince George--Peace River.

My first procedural point of order is whether or not the subcommittee is adhering to the criteria set by the standing committee. In recent times the standing committee has taken to accept without question, in camera and without explanation the decisions of the subcommittee. If the standing committee does not verify that the criteria are properly applied, who does?

Would this fall under the gambit of Standing Order 1? Would the matters I have raised under the question of privilege for that matter also fall under the same gambit?

My second point, and I am concluding with it, is about the way the subcommittee reaches its decisions by consensus, which is rapidly becoming by unanimity. A review of the standing committee's discussions on the matter of private members' business in the fall of 2001 seems to indicate that this is becoming a preoccupation. Yet this practice is not well defined and could lead to problematic situations such as the subcommittee has experienced lately. We all know the power contained in the necessity of unanimity. I think this has to be addressed.

Finally, I do not have any antipathy toward members of the subcommittee. I believe they are caught in a rather awkward situation. I hope that this can be addressed because I now understand firsthand some of the frustrations other members have experienced. I think the system we have for private members' business must be corrected. The way we do it now can lead only to more and more frustration and lack of respect for members of the House.

Criminal Code

[John Cannis, Liberal, Scarborough Centre, ON]

moved for leave to introduce Bill C-429, an act to amend the Criminal Code (destruction of national flag).

Mr. Speaker, what I am asking, through this initiative to amend the criminal code after section 56, is that everyone who, without lawful cause, wilfully damages or destroys in any manner, burns, defaces, defiles, mutilates, tramples upon or otherwise desecrates the national flag would be guilty of an offence and liable on summary convictions.

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