Bill C-41 (Historical)

Amendments and Corrections Act, 2003

An Act to amend certain Acts

Criminal Code

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

Madam Speaker, I am pleased to speak to Bill C-416, an act to amend the Criminal Code and the Youth Criminal Justice Act introduced by the hon. member for Portage—Lisgar.

This bill would result in amending the Criminal Code and the Youth Criminal Justice Act so that a court would no longer have to consider the particular circumstances of aboriginal offenders when passing sentence. The amendment would apply to both adult and youth offenders.

The specific section of the Criminal Code that is at issue is section 718.2(e). It states that:

--all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

The proposed bill would delete these last nine words as well as similar provisions in the Youth Criminal Justice Act.

The primary purpose of this principle is to encourage our courts to use restraint when considering imprisonment as a sentencing option. It is important to point out that this principle of restraint applies to all offenders, not just aboriginal offenders.

However, based on the fact that aboriginal offenders continue to be drastically over-represented in our criminal justice system and in our prisons, the principle stresses the importance of paying special attention to aboriginal offenders. Based on the history and current plight of aboriginal peoples in Canada, this special recognition is both necessary and justified. I therefore cannot support Bill C-416.

This relatively new principle of requiring courts to consider the circumstances of aboriginal offenders came into effect in 1996 by virtue of Bill C-41. This is one of a number of principles that were codified in that bill. Since that time, the courts, including the Supreme Court of Canada, have had an opportunity to consider this sentencing principle. I would like to share some of the comments that the Supreme Court made about paying particular attention to the circumstances of aboriginal offenders.

In 1999 the Supreme Court concluded in Regina v. Gladue that in sentencing aboriginal offenders section 718.2(e) required judges to consider the unique systemic or background factors that may have contributed to the offender having committed the crime, and then to consider whether there were traditional or cultural sentencing practices or sanctions that may have been appropriate for that particular offender in the circumstances.

The Supreme Court stated that aboriginal offenders:

--differ from those of the majority because many aboriginal people are victims of systemic and direct discrimination, many suffer the legacy of dislocation, and many are substantially affected by poor social and economic conditions.

In Regina v. Wells, a unanimous 6 to 0 decision in 2000, the Supreme Court upheld a lengthy prison sentence for an aboriginal offender who had sexually assaulted an aboriginal woman. When considering whether a conditional sentence would be appropriate, the court stated that the application of section 718.2(e) did not mean that a sentence for an aboriginal offender would automatically be reduced since the determination of a fit sentence required consideration of all of the principles and objectives of sentencing set out in part XXIII of the Criminal Code.

The court stated that while section 718.2(e) mandated a different methodology for the sentencing of aboriginal offenders, it did not necessarily mandate a different result. Section 718.2(e) did not alter the fundamental duty of the sentencing judge to impose a sentence that was fit for the offence and the offender.

The court further restated the principle set out in the earlier decision of Gladue, that at the more serious end of the range of offences it would be more likely that non-aboriginal and aboriginal offenders would receive similar sentences. The court confirmed that the section did not mean that aboriginal offenders must always be sentenced in a manner that gave greatest weight to the principles of restorative justice and less weight to goals such as deterrence and denunciation.

In the Wells decision, the Supreme Court confirmed that the trial judge, in imposing a 20-month sentence, correctly applied the sentencing objectives of denunciation and deterrence to a serious sexual assault.

The Supreme Court in Wells said, however, that in appropriate circumstances, a sentencing judge may accord the greatest weight to restorative principles notwithstanding the fact that an aboriginal offender committed a serious offence.

The court stated that a just and appropriate mix of accepted sentencing goals depended on the needs and current conditions of the particular community where the crime occurred. The court also rejected the notion that restorative sections were necessarily lenient. In fact, the court pointed out that making reparations to the victim and the community might be more onerous than serving a short prison sentence.

The Supreme Court, after fully considering that section, concluded that this provision did not give preferential treatment to aboriginal offenders but sought to treat aboriginal offenders fairly by recognizing that their circumstances were usually different.

I fully support the balanced approach that has been set out by the Supreme Court in applying section 718.2(e) of the Criminal Code.

I am also pleased that section 718.2(e) of the Criminal Code has encouraged the development of programs and services to assist aboriginal offenders across the country. For example, in Toronto, a “Gladue court”, if we want to call it that, has been established and that makes section 718.2(e) work the way the Supreme Court has set out.

The government continues to be concerned about the over-representation of aboriginal offenders in the criminal justice system. This was confirmed by the statement made in the Speech from the Throne in 2001, opening the first session of this Parliament. It said:

Canada must take the measures needed to significantly reduce the percentage of Aboriginal people entering the criminal justice system, so that within a generation it is no higher than the Canadian average.

In conclusion, there is no doubt the aboriginal community is vastly over-represented in the criminal justice system. The government is continuing to make efforts to change this; however, the causes of over-representation involve complex social and economic factors, addictions and disadvantages. These are historical and not easily dealt with.

Despite indications that the courts are supporting the sentencing provisions in the Criminal Code that encourage restraint in the use of incarceration, the government continues to be concerned about the incarceration of aboriginal offenders. The government will continue to make efforts to ensure that aboriginals are not over-represented in our prisons. Paying particular attention to the circumstances of aboriginal offenders at the sentencing stage is only one small part of the overall plan to reduce this over-representation.

Our society needs to focus on the root cause of crime so that long term changes will result. For example, we are funding programs for aboriginals through the national crime prevention strategy, the aboriginal justice strategy, and the youth justice renewal initiative.

The government is committed to working with our aboriginal people and all Canadians to contribute to a safer and more just society.

Business of the House

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

Mr. Speaker, there have been negotiations and an agreement reached among House leaders yesterday and earlier this morning about the following motion. If you were to seek it, I believe you would find consent for its adoption. The motion is with regard to Bill C-41, the technical corrections bill. I move:

That, notwithstanding any Standing Order or usual practice, all questions necessary to dispose of amendments at the report stage, concurrence at report stage and third reading and passage of Bill C-41, the technical corrections bill, be now deemed to have been put and carried.

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

Mr. Speaker, I guess this is the supplementary question to the lead-off of her leader earlier this day. He wanted to know the business of the House as well.

I am pleased to inform the House that we will continue today debating the Alliance motion endorsing Dalton McGuinty's election platform, which we have been doing for the day. Later tonight Mr. McGuinty will be the premier.

Tomorrow we will resume third reading debate of Bill C-13, the reproductive technologies bill. When this bill is completed, we will then turn to Bill C-32, the Criminal Code amendments.

On Monday, should it be necessary, we would return to Bill C-13 followed by third reading of Bill C-36, the Archives and National Library bill.

We would then proceed to the report stage of Bill C-19, the first nations fiscal legislation. If necessary, I would then return to Bill C-32, the Criminal Code amendments, followed subsequently by Bill S-13, the census records bill.

I will be seeking also cooperation of colleagues across the way to further our discussion on Bill C-41, the technical corrections bill that we discussed informally earlier this day.

On Tuesday, we will debate the third reading of Bill C-17, the public safety bill.

Starting on Wednesday, I hope we will be in a position to deal with bills that have come out of committee, as well as dealing with any of the business just listed that has not been completed.

I would also like to indicate to the House that we have had conversations about the future of Bill C-38, concerning the use of marijuana. We also intend to put this bill before the House in the very near future.

Committees of the House

[Reg Alcock, Liberal, Winnipeg South, MB]

Mr. Speaker, I have the honour to present, in both official languages, the seventh report of the Standing Committee on Government Operations and Estimates regarding its order of reference of Friday, September 26, 2003, on Bill C-41, an act to amend certain acts. The committee has considered Bill C-41 and reports the bill without amendment.

Amendments and Corrections Act, 2003

[Rahim Jaffer, Canadian Alliance, Edmonton Strathcona, AB]

Mr. Speaker, I would like to add some comments, but not to the same extent as my hon. colleague. He did a great job in dissecting some of the challenges in the acts when it comes to the amendments and the concerns we still have with the appointments of some positions.

As we heard, Bill C-41, an act to amend certain acts, lists a number of different areas that will be dealt with. I will read them into the record. However, I will focus on a couple of the areas that pertain to revenue and customs, the portfolio for which I am responsible.

This particular bill would amend the Canada Customs and Revenue Agency Act, the Customs Act, the Financial Administration Act, Importation of Intoxicating Liquors Act, Lieutenant Governors Superannuation Act, the Modernization of Benefits and Obligations Act, the National Round Table on the Environment and the Economy Act, the Salaries Act ,and the Supplementary Retirement Benefits Act.

My colleague from Red Deer was very eloquent about highlighting the National Round Table on the Environment and the Economy Act. There are still challenges in the act that we in the House should be looking at very closely.

The changes that are being made in the Canada Customs and Revenue Agency Act, the Customs Act, and the Importation of Intoxicating Liquors Act are mostly housekeeping that are not too significant but need to be shared with the public.

Other areas of change deal with benefits and obligations in some of the retirement benefits. There will be some minor changes to the disability allowance and other benefits for former lieutenant governors, and also consular fees and specialized services regulations.

As my hon. colleague mentioned, we are supporting the changes. We do have some challenges still facing this particular bill that would amend some of the acts.

In the area of the CCRA Act, the Customs Act and the Importation of Intoxicating Liquors Act, I will share specifically the changes. They are simple housekeeping changes. Changes in the CCRA Act bring the French version in line with the English version of the act. Specifically it adds the French word “délégué” after “commissaire” throughout the act. Other than that there is nothing of which we are aware that is too significant, but significant enough to mention.

The Customs Act has a similar wording change, especially to update the French version with regard to the Costa Rican Free Trade Agreement. All members in the House and most Canadians know that the members of the official opposition have always been staunch supporters of free trade and obviously will continue to fight for free trade, because not only Canadians, but many developing countries in the world benefit directly from free trade.

Much of our strategy when we talk about foreign aid and development emphasizes that if we have a balanced free trade policy alongside the aid to many of these countries, it helps them develop even faster than just dumping money into them. We need to have that two-pronged strategy and we in the Alliance support it very strongly.

Finally, the Importation of Intoxicating Liquors Act has changes in the wording in the English language version to reflect the Costa Rican Free Trade Agreement.

That is about all that pertains to revenue and customs. I thought I would mention those changes. Hearing all this talk about intoxicating liquors, I am sure hon. members are getting thirsty, so I will stop right there.

[Bob Mills, Canadian Alliance, Red Deer, AB]

Not in my area, sir. They are a rare breed. They are an endangered species in some parts of the country.

The other problem is that those people are appointed by the Prime Minister. Again, we have this top down process where the Prime Minister has all of the power to name this particular group. I suppose it follows that he is going to name his friends.

Therefore we see people like Mr. McGuinty, people like Quebec lawyer Alfred Pilon, career politicians like Mike Harcourt and so on. As I say some of them do a very good job but the problem is there is not that broad base which really would be a better way to do it.

We are really saying that it should be based on a person's qualifications. It should be a wide range of people. It should be open and accountable. The budgeting should be done up front so we know exactly what these things are going to cost.

Let me relate a couple of experiences that I have had over the last 10 years with similar types of government boards and meetings. The first one was in Vancouver. I was there as a critic and sat at a table. It is very interesting because around that table of 10 people, nine of them were Liberals. Eight of them had been candidates who had lost in the previous election. They had come with their wives to Vancouver. They were staying in a five star hotel. They complained rather bitterly that they had been forced to come to the banquet because it really interfered with some of the other activities that they and their wives had planned to do while visiting Vancouver.

They had absolutely no interest in the topic of discussion. They had absolutely no concern for what it was about. They were on a two or three day paid junket to Vancouver. That was what it was all about. They were very clear and open. This was early in my political career and they probably thought I was one of them as well. It was interesting rather than to talk to listen to what they had to say.

They had a lot to say about what they expected. I recall one fellow saying, “If I run three times for the party, even if I lose I will get a really good appointment, so that is my motivation for running”. I would hope most people in the House had a better motivation than that for wanting to be a member of Parliament.

As well, I am pleased that we can debate the environment and speak about the Kyoto round table. That was very interesting. There was an invitation list primarily of people who supported the protocol.

The media were not allowed in. No one who was not on the list basically at the beginning was allowed in. Eventually I said that I was the official opposition critic for the environment and it would seem that maybe I should be there. I was advised by the bureaucrat I was talking to that they would see if I could come in but if I did come in, I could not talk, I could not ask questions and certainly they would not expect me to be politically partisan out in the coffee room.

It was a set up deal. It was a bunch of supporters who were out getting public opinion at 14 meetings across the country with a set list of invitees who were all on one side of the issue. There was no media allowed in and it was paid for by the Canadian taxpayer.

That is the problem with these round tables. They are not for the public. They are a way of rewarding political people for whether they run, whether they raise funds or whatever they do.

While the change in title from executive director to president is what Bill C-41 talks about, that is not the issue. Should we have round tables? Yes, I think it is good that the minister wants to hear from the Canadian public, from all of the interest groups on all sides of the issue, but I do not believe that is what the round table is all about. As a result obviously I think it is time that the Canadian public engaged and said “Look, if we are paying the bill, we want to be sure we are getting value for money. We don't particularly care whether you call him an executive director or a president. That is not the point”.

A good example would be a report that came out this week which was done by the University of Alberta and was commissioned by the Alberta Chamber of Commerce. It was a three or four month study. It was very in-depth. A lot of Canadians would have liked to have looked at all of those things. As the member for LaSalle—Émard has said, we need much more discussion. Canadians need to understand what it means.

The government says it will ask every Canadian to reduce by 20% and that it will pay $64 million per carbon credit. Of course, the plan is not totally in place and it really does not know. If it is like the REDI program, for every dollar that is spent on the environment, $4.35 will be spent on bureaucracy and administration. That is just an example of what happens.

The government does not engage with Canadians, that for $64 million per megatonne, it may reduce a maximum of 20 megatonnes. The forest fires in B.C. produced a 100 megatonnes. Our commitment is 240 and the government plan at very best would hit 170.

Would it not be better to engage Canadians and ask them what they really want for the environment? I think the answer would be, if we had that round table of all Canadians, that they want clean air. They want clean water. They want us to emphasize the smog days in Toronto. They want us to talk about the smog that one can literally chew in places along the border and in the Fraser Valley where the Americans are building power plants.

They want us to talk about those issues. They want that out in front where they can participate, not simply a bunch of political people getting together to be rewarded with a nice long weekend in Whistler, Banff, the Gatineaus or wherever. That is not what Canadians want to pay for. That is not what they should get.

While our party is supporting the bill and we are supporting the change in title of the executive director to president, we certainly would have a much better way of conducting national round tables on the environment than the way they are being done at present.

[Bob Mills, Canadian Alliance, Red Deer, AB]

Mr. Speaker, it is my pleasure to speak to Bill C-41. I will just go through the area that relates to the environment.

This omnibus bill does nothing substantial to the National Round Table on the Environment and the Economy Act. It simply changes the title of the executive director to president. I would like to take this opportunity to talk about this national round table and what I feel it stands for and let Canadians know some of the problems with it.

First, I do not think the job title particularly matters. The current president, as he will now be called instead of executive director, is David McGuinty. That probably says quite a bit currently. It tells us who has to be named to the position. The person obviously has to be a good Liberal.

Like most publicly funded Liberal boards, there are a huge number of Liberal supporters on them. The national round table is no different. I am not saying that many of these people are not qualified; some of them do an excellent job. The problem is they have to be Liberals in order to be there. That is pretty much a major problem.

[Rex Barnes, Progressive Conservative, Gander—Grand Falls, NL]

Mr. Speaker, I rise to speak to Bill C-41, an act to amend certain acts. Let me state from the outset that this piece of legislation is not as straightforward as some would have us believe. The bill is very technical and one that requires tough scrutiny and examination prior to its passage.

The bill proposes a series of minor technical amendments to various federal acts, including the Lieutenant Governors Superannuation Act and the National Round Table on the Environment and the Economy Act.

Bill C-41 is not in itself a so-called statute law amendment act. To be such it would have to meet certain criteria established by the justice department's legislative section. For example, the proposed amendment should not be controversial or require the expenditure of public funds, which is not the case with Bill C-41. Rather, this is an omnibus bill that will update and maintain certain laws. The last parliamentary initiative of this sort dates back to June 2002 when Parliament passed Bill C-43.

According to the government, Bill C-41 permits minor corrections which do not warrant separate bills to be made to a number of existing federal laws. In some cases the amendments aim to make the English and French versions of an act more consistent with one another. In others they clarify the definition of certain terms to make an act's provisions easier to interpret.

The technical amendments are to the Canada Customs and Revenue Agency Act, the Customs Act, the Financial Administration Act, and the Importation of Intoxicating Liquors Act.

Despite what the Liberals say, Bill C-41 also contains major amendments to two other federal acts. The bill amends the Lieutenant Governors Superannuation Act so that they may continue to pay into their pension plan up to a maximum of five years should they become disabled and have to leave office before completing the five years of service required to be entitled to a pension plan.

Moreover, Bill C-41 establishes a formula for the segment of a pension if, following the death of the lieutenant governor, there are two surviving spouses. Corresponding amendments to the Supplementary Retirement Benefits Act and the Modernization of Benefits and Obligations Act will complement the government's proposed amendments in this area.

Bill C-41 also amends the Salaries Act to establish a disability allowance for lieutenant governors who become disabled after 65 years of age. This will provide them with the same coverage that they had before turning 65. According to the government, this amendment is based on provisions applicable to parliamentarians over the age of 65.

These amendments seem to be part of the ongoing review of the benefits and obligations scheme for lieutenant governors. Last year Bill C-43 also amended the Lieutenant Governors Superannuation Act to lower from 65 to 60 the age at which provincial representatives of the Queen became eligible for a deferred pension. It is interesting to note that instead of using a single bill to do so, the government has decided to modernize this plan under the guise of technical amendments.

Bill C-41 makes two amendments to the National Round Table on the Environment and the Economy Act. First, the person responsible for managing the round table, who in passing is appointed by the governor in council to hold office during pleasure, will now hold the title of president instead of executive director. Second, this person from now on will hold office for a term not exceeding five years, rather than the three years currently provided under subsection 10(1) of the act.

The Progressive Conservative Party of Canada supports the bill in principle at this time; however, we feel that Bill C-41 requires further study and examination, which requires our full attention.

[John Reynolds, Canadian Alliance, West Vancouver—Sunshine Coast, BC]

Mr. Speaker, Bill C-41 is an omnibus bill containing a number of provisions that would normally have been subjected to the miscellaneous statute law amendment program. This program was initiated in 1975 and was established to allow for minor, non-controversial amendments to federal statutes in an omnibus bill. Under the program, a draft version of the bill is submitted to the Standing Committees on Justice of the House and the Senate.

The MSLA process requires any item objected to by the Senate or the House committee to be withdrawn from the bill. To be included, the proposed amendments must meet certain criteria. They must not be controversial, not involve the spending of public funds, not prejudicially affect the rights of persons, not create a new offence, and not subject a new class of persons to an existing offence.

The procedure is designed to eliminate any potential controversial items, ensuring quick passage of the bill. Meeting these criteria and going through the MSLA process legitimizes the use of the omnibus bill. Since the process was not followed, the official opposition would like to register an objection to the use of an omnibus bill. When this bill goes to committee, we will be asking the government to explain why it has abandoned the MSLA process.

The purpose of this act is to make technical amendments and corrections to various statutes. This enactment makes technical corrections to: the Canada Customs and Revenue Agency Act; the Customs Act; the Financial Administration Act; the Importation of Intoxicating Liquors Act; the Lieutenant Governors Superannuation Act; the Modernization of Benefits and Obligations Act; the National Round Table on the Environment and the Economy Act; the Salaries Act; the Supplementary Retirement Benefits Act; the Public Service Modernization Act; and the consular fees regulations coming into force.

Several amendments correct the French versions, bringing them in line with the English versions, namely: amendments to the Canada Customs and Revenue Agency Act, the Customs Act, the Lieutenant Governors Superannuation Act, and the Public Service Modernization Act.

Several amendments clean up the language and correct misuse of gender. These corrections are made to the Financial Administration Act, the Lieutenant Governors Superannuation Act and the Supplementary Retirement Benefits Act.

One amendment brings the Importation of Intoxicating Liquors Act into line with the Costa Rica free trade agreement Canada signed and the House passed in the last session.

With respect to the changes to the National Round Table on the Environment and the Economy Act, the environment critic for the official opposition will address that matter later.

Changes to the Modernization of Benefits and Obligations Act make provisions for the partner of a former lieutenant governor to have a pension.

Finally, the changes to the Salaries Act entitle lieutenant governors to a disability allowance.

My party will support the bill, but we wish it had been done in a different manner.

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

moved:

That Bill C-41, an act to amend certain Acts, be referred forthwith to the Standing Committee on Government Operations and Estimates.

Mr. Speaker, I am pleased to speak briefly today about Bill C-41, the technical adjustments bill, which proposes minor corrections to a number of statutes that would not justify stand-alone bills in Parliament.

The government has introduced this kind of bill as a housekeeping initiative to make the most effective use of parliamentarians' time and to ensure that our laws are accurate and up to date and often particularly reflect changes in terminology between the French and the English languages.

By proceeding now with this bill, Parliament can consider minor amendments to statutes without having to wait for legislation dealing with more fundamental changes to the statutes in question.

Bill C-41 is the second technical corrections bill the government has introduced. A similar bill was introduced in 2001 to correct a variety of statutes.

I want to quickly summarize the provisions of this bill.

For example, amendments to the Canada Customs and Revenue Agency Act would change the French title for the new one that is now accepted for deputy commissioner from “commissaire adjoint” to the new term “commissaire délégué”, which I understand reflects the modern way of describing this term in French.

The title for the executive director of the National Round Table on the Environment and the Economy would be changed from executive director to president. Again, this is a more up to date title.

The Financial Administration Act would be amended to clarify the definition of officers-directors to provide for clearer administration of these positions.

There is a provision involving lieutenant governors. Bill C-41 updates the disability provisions for lieutenant governors over age 65 consistent with provisions for lieutenant governors under 65 and changes for parliamentarians made in 2001. The bill would also allow lieutenant governors to contribute to their pensions for up to five years in the event they become disabled and receive disability benefits.

This provision would ensure that disabled lieutenant governors can become eligible for their pensions, consistent with the provisions available to MPs and public servants. We addressed these issues in the MPs' plan a little while back. This merely standardizes the form for lieutenant governors as well.

With respect to fees for consular services, since 1998, the government has been levying such fees based on a decision made by the Treasury Board.

An administrative correction is needed to validate this authorization to levy these fees between January 1998 and January 2003.

Bill C-41 also makes corrections with respect to customs-related matters, notably the coordination provisions in the Canada-Costa Rica Free Trade Agreement Implementation Act, and the references to tariffs in the Importation of Intoxicating Liquors Act.

As I indicated earlier, these amendments are purely technical and do not imply any general policy change. I hope that the members will facilitate the passage of these amendments to correct and update our legislation, as required.

I call on my colleagues to support this initiative so that we may make corrections and have proper translations in our legislation as soon as possible.

Bill C-41. On the Order: Government Orders

June 4, 2003--the Minister of State and Leader of the Government in the House of Commons--Second reading and reference to the Standing Committee on Government Operations and Estimates of Bill C-41, an act to amend certain Acts.

Business Of The House

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

Mr. Speaker, the hon. member across is a little impatient with his future holidays. He will probably have to wait some time.

This afternoon we will continue to debate second reading of Bill C-48, the natural resources taxation bill. I understand that the bill is nearing completion.

When it is complete, we will then debate Bill C-50, the veterans' benefits bill sponsored by my colleague, the Minister of Veterans Affairs, followed by the consideration of the Senate amendments to Bill C-10B, the cruelty to animal bill.

If time is left, we would deal with third reading of Bill C-17, the public safety bill, and second reading of Bill C-46, the market fraud bill.

In the unlikely event that we do not complete all of that this afternoon, on Friday we would begin with a reference to committee before second reading of Bill C-41, the amendments and corrections bill. The opposition House leader and I have had a brief conversation about this

We would then proceed with Bill C-37, respecting improvements to Canadian Forces pension benefits.

We will then return to any bills already mentioned today in the unlikely event that some of them are not fully completed.

On Monday, we would begin with Bill C-17, the public safety bill, and then return to the list previously described.

Tuesday, September 30, and Thursday, October 2, shall both be allotted days.

Amendments and Corrections Act, 2003

[Wayne Easter, Liberal, for the Minister of State and Leader of the Government in the House of Commons]

moved for leave to introduce Bill C-41, an act to amend certain Acts.

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

Criminal Code

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

Mr. Speaker, I am pleased to speak to Bill C-416, an act to amend the Criminal Code and the Youth Criminal Justice Act (sentencing principles), which has been introduced by the hon. member for Portage--Lisgar. The bill focuses on the sentencing of aboriginal offenders and it would result in the removing of the obligation of the court to consider the particular circumstances of aboriginal offenders when passing sentence.

Let us look at the history. On July 13, 1995, Bill C-41 received royal assent. It was proclaimed in force in September 1996. In Bill C-41, Parliament for the first time set out the purposes and principles of sentencing. One of the new principles, found in section 718.2(e), was that:

...all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

The effect of this private member's bill would be to eliminate the specific reference to aboriginal offenders in the Criminal Code as well as in the Youth Criminal Justice Act. I cannot support this proposal.

The purpose of this provision is to encourage restraint in the use of imprisonment for all offenders. Codified for the first time in Bill C-41, the idea of encouraging restraint in the use of incarceration is not new. A white paper published under the authority of the then minister of justice in 1982 included in its “Statement of Purpose and Principles of Criminal Law” that “in awarding sentences, preference should be given to the least restrictive alternative adequate and appropriate in the circumstances”.

Restraint in the use of imprisonment has been endorsed by numerous other commissions and in various law reform reports. By the time Bill C-41 was debated, however, the need to consider restraint had been given increased importance as a result of Canada's high rate of incarceration when compared to those of other industrialized nations.

According to Council of Europe statistics published on September 1, 1993 for 1992-93, Canada incarcerated about 130 inmates per 100,000 people, compared to the range in western Europe of about 51 in Holland and 92 in the United Kingdom. Furthermore, the rate at which aboriginal Canadians were being incarcerated was even higher, in the neighbourhood of 785 per 100,000, or about six times the rate of the general population. It is worth noting that if aboriginal Canadians were jailed at the same rate as non-aboriginals, Canada's overall incarceration rate would be comparable to those in most western democracies.

There is a longstanding concern by the government and by the Parliament of Canada with the overrepresentation of aboriginal people in the criminal justice system. For example, this was addressed in “Taking Responsibility”, the 1988 report of the Standing Committee on Justice and Solicitor General; in the 1987 report of the Canadian Sentencing Commission; in the 1991 Department of Justice discussion paper, “Aboriginal People and Justice Administration”; in Law Reform of Canada Report 34, “Aboriginal Peoples and Criminal Justice”; in parliamentary debate on Bill C-41; and finally, in the Speech from the Throne on January 30, 2001, opening the first session of the 37th Parliament.

As I stated previously, section 718.2(e) of the Criminal Code applies to all offenders, not just aboriginal offenders. Parliament intended that it, along with the purpose and other principles found in section 718 of the Criminal Code, would breathe life into the notion of restraint in Canada. As I previously stated, the bill before us today would eliminate any reference to aboriginal offenders and I simply cannot support that change.

The purpose of including this specific reference to aboriginal offenders in the Criminal Code and more recently in the Youth Criminal Justice Act was to signal Parliament's concern over the especially high aboriginal incarceration rate and the socio-economic factors that contribute to this. It requires sentencing judges to be sensitive to these matters and for judges to consider the appropriate alternative sentencing processes, including restorative, culturally sensitive approaches such as sentencing circles, healing circles and victim-offender mediation.

There is no doubt that many of the accused who appear in our criminal courts exhibit some of the same socio-economic deprivations of poverty, substance abuse, lack of education and low self-esteem that one finds in all too many aboriginal Canadians. However, as the Supreme Court of Canada confirmed in its 1999 decision in Regina v. Gladue:

--aboriginal offenders differ from those of the majority because many aboriginal people are victims of systemic and direct discrimination, many suffer the legacy of dislocation, and many are substantially affected by poor social and economic conditions.

The court is therefore required to acknowledge that these special factors are to be considered and to consider what role they may have played in bringing that aboriginal offender before the court and to consider the full range of sentencing options that are appropriate in the circumstance. In other words, it provides an individualized sentence that is appropriate for both the offence and the offender. I fully support that approach.

In conclusion, there is no doubt that aboriginal people are vastly overrepresented in the Canadian criminal justice system. The government is continuing to make efforts to change this. However, the causes of overrepresentation involve complex social and economic factors of poverty, addiction and disadvantage. They are historical and not easily dealt with.

It appears that the courts are supporting the sentencing provisions in the Criminal Code that encourage restraint in the use of incarceration and I say for all offenders. However, the government continues to be concerned about the incarceration of aboriginal offenders and will continue to make efforts to ensure that aboriginals are not overrepresented in our prisons.

The references to aboriginal offenders in the Criminal Code and the Youth Criminal Justice Act are one part of the overall plan to reduce this overrepresentation. At the same time, the government is focusing on the root causes of crime so that long term changes will result. Examples are the funding of programs for aboriginals through the national crime prevention program, the aboriginal justice strategy and the youth justice renewal initiative.

The government is committed to working with aboriginal peoples to ensure that those changes we need within the system result.

Supply

[Kevin Sorenson, Canadian Alliance, Crowfoot, AB]

Madam Speaker, I rise today to participate in this debate asking the House to call on the government to bring in measures to protect and basically to reassert the will of Parliament against certain court rulings. More specifically, I want to draw some attention to the ones granting prisoners the right to vote.

On August 13, 2002, an editorial by Dan Gardner appeared in the Ottawa Citizen that concluded:

--it's not judges that deserve to be pummelled. It's the elected politicians who didn't have the guts and vision their job demanded.

Although Mr. Gardner has referred solely to section 15 of the charter in relation to same sex marriages in his editorial, there are numerous examples where judiciary, particularly those within the Supreme Court, are creating new law in their rulings.

Before I proceed, I would like to take the opportunity to thank my colleague from Provencher for the excellent speech that he delivered this morning and the powerful arguments that he presented regarding Parliament defending the traditional definition of marriage and Parliament's role here.

The member for Provencher as well as our other colleague from Surrey North travelled throughout the country over the course of the last month and a half with the Standing Committee on Justice to hear numerous witnesses present arguments both for and against changing the definition of marriage.

For the record, I fully support the position of my colleague and my party that the definition of marriage should remain as the union of one man and one woman to the exclusion of all others.

As I stated earlier, judges are creating laws in this country. This is not just in the opinion of member on this side of the House, but I refer members to today's editorial in the National Post “Looking for leadership”. Let me read the first paragraph:

Canadians expect that their elected representatives will have the courage to tackle divisive questions head-on. Yet on two of the most prominent issues facing this country--marijuana decriminalization and gay marriage--it is the court system, not Parliament, that has taken the lead. Will the federal government take a definitive stand now that lower court decisions are piling up on both issues? Or will it stand back and let the Supreme Court usurp the role of legislator--as it is regrettably done in the past...

It goes on and lists a number of issues on which it stepped out.

Effectively, the decisions or judgments of judges are being substituted over that of elected representatives of the people. We therefore must ask, “Why and how are judges entering into an area that has exclusively been the prerogative of Parliament?

The partial answer to that question appears in a column that I read in a 1999 edition of Choices . In the article “Wrestling with Rights: Judges, Parliament and the Making of Social Policy”, author Jane Hiebert says:

Since the Charter’s introduction, the judiciary has passed judgement on the constitutionality of a breathtakingly broad range of political and social issues from the testing of cruise missiles in Canadian airspace to euthanasia...

--the Charter has changed the political environment and climate of legislating and is influencing legislative choices at all stages of the policy process..

Effectively, according to Professor Hiebert, the charter offers:

--a convenient refuge for politicians to avoid or delay difficult political and moral decisions. Elected representatives can insulate themselves from criticism, and political parties can avoid risking party cohesion, by ignoring controversial issues and claiming that fundamental issues of rights should first be resolved by courts before political decisions are taken...Thus, the expectation is for political inaction in which Parliament not only avoids issues but does not exert influence on how the Charter should be interpreted and applied to social conflicts.

Professor Hiebert contends “this is an abrogation of political responsibility to make policy decisions in the public interest”.

Former attorney general of British Columbia, Alexander Macdonald, agrees with Professor Hiebert. In the book that he authored, Outrage: Canada's Justice System on Trial , Mr. Macdonald contends that the Charter of Rights and Freedoms has entangled the criminal justice system in a mesh of judge-made law. He says that elected officials are too powerless or scared to lift a finger to stop it.

The former British Columbia attorney general says that government may have to consider wider application of the notwithstanding clause, the Constitution's rarely used escape valve, to deal with judicial activism and courts that go far beyond what people think is common sense and fairness.

Pointing to the British Columbia court decision that struck down the law against possession of child pornography, Mr. Macdonald demonstrates how courts are substituting their judgment over that of the elected representatives of the people.

In the book that Mr. Macdonald wrote, he also touches on what he calls “the whole immigration fiasco, thanks to the Singh decision”. This one-time lawmaker says that as a result of the Supreme Court's interpretation of the law, if somebody gets into Canada and touches Canadian soil, whether they are smuggled in or have falsified their papers, it does not matter. They immediately get a lawyer and can buy two or three years while they go through the process, quite possibly selling drugs and committing other crimes while they wait to be processed, all at the expense of the Canadian taxpayers, and all at the expense and time of genuine refugees who are unable to afford or receive a hearing.

For all the examples of where the courts have overturned laws passed by Parliament and failed to reassert its authority, there are examples where this and previous governments have deliberately and with much forethought abrogated their responsibility by drafting and passing legislation that is full of holes and therefore wide open to interpretation.

Bill C-41, which gave us conditional sentences, is a prime example. Under this legislation which passed in 1995, any person convicted of an offence for which the punishment is a sentence of two years less a day may receive a conditional sentence, meaning they are not incarcerated but remain at home under house arrest or under certain other conditions. Although my party, the Canadian Alliance Party, repeatedly asks that the legislation be amended to limit conditional sentences to non-violent offences and first time offenders, the government refuses to amend the law.

Subsequently in case after case, including manslaughter and rape cases, time and time again these violent offenders were receiving conditional sentences. Still the government failed to amend the law despite many demands from victims groups, the Canadian Police Association, and those of us sitting in the official opposition. Ultimately the courts ruled that conditional sentences were not off limits to violent offenders, and if this in fact had been the intent of Parliament, it should have been written clearly within the law. That is what the courts say.

As I stated in the House just over a month ago, the Supreme Court will be ruling any day on whether or not warrants allowing for the taking of DNA samples is unconstitutional. A convicted rapist's lawyer in this case is not arguing his client's innocence, and he is not arguing that there has been a miscarriage of justice. He is arguing against the law that has allowed the police to obtain evidence against his client.

As I also mentioned in the House in regard to the Feeney decision, Supreme Court Judge L'Heureux-Dubé in her dissenting opinion said that while the rights of the accused are certainly important under the Charter of Rights and Freedoms, they are not all the equation. This Supreme Court judge boldly suggested that it was time to reassess the balance the court has struck between protecting the individual rights of the accused and preserving society's capacity to protect its most vulnerable members and to expose the truth. Judge L'Heureux-Dubé said:

--perhaps it is time to recall that public respect and confidence in the justice system lies not only in the protection against police abuse, but also in the system's capacity to uncover the truth and ensure that, at the end of the day, it is more likely than not that justice will have been done.

In regard to courts overturning a law passed by Parliament, a prime example occurred on October 31, 2002. On that date the Supreme Court overturned a 1993 law passed by Parliament prohibiting prisoners serving a sentence of two years or more from voting in a federal election.

The court found that the law infringed section 3 of the Charter of Rights and Freedoms which gives every Canadian the right to vote. Section 3 cannot be overridden by section 33, which is the notwithstanding clause. However, the government can, but in this case has chosen not to, introduce a constitutional amendment to reverse this decision.

Given the government's failure in this regard, the Canadian Alliance has stepped forward and tabled a constitutional amendment. The amendment we have put forward would replace section 3 of the Canadian Charter of Rights and Freedoms, part 1 of schedule B, with the following:

3.(1) Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and be qualified for membership therein.

3.(2) Subsection (1) does not apply to any person who is imprisoned.

It is a constitutional amendment. Effectively this constitutional amendment would mean that no person imprisoned at the time of an election would be guaranteed the right to vote under the charter.

In the opinion of members on this side of the House, an opinion that I am confident is shared by the general public, the majority of Canadians, convicted persons should not enjoy the same rights as upon conviction they do not enjoy the same liberties as law-abiding citizens.

For the government to continue to assert the rights of the offenders over the rights of the victims, over the protection of society I believe is an affront to Canadians in general and to victims more specifically. Again I am confident that the majority of Canadians would be of the same opinion.

According to a poll that was commissioned by the Solicitor General, a majority of Canadians believe safety and security concerns should override the protection of some individual rights. Two-thirds of Canadians think that police and prosecutors should have more power to fight crime even if that might be seen as an infringement on some individual rights.

Furthermore, and again I remind the House that this is a poll by the Solicitor General's very own department and I quote from it, “just under half of Canadians are very or somewhat confident in the prison system, while only one in three would say the same thing about the parole system”.

While the spokesperson for the federal parole board says that he believes this apparent lack of confidence is only as a result of misperception, Correctional Service Canada has provided absolutely no comment, at least to my knowledge, regarding the majority of Canadians who have zero or no confidence in the prison system. One can therefore only surmise that it too would chalk up this confidence crisis to the misperception of Canadians when the truth is Canadians have ample reasons and examples to have no confidence in the correctional system, which is shown in the case of a number of offenders, one of which I would like to point out.

His name is Michael Hector. In 1995 the National Parole Board let armed robber Michael Hector out of prison. Within less than two years Hector went on a killing spree. On January 9, 1997 he shot Robert McCollum in the face point blank. He walked up to him and killed him instantly. The same day he shot Kevin Solomon, I believe in the back, while he took a shower because he was a possible witness in the McCollum murder. In the same month he stuck the muzzle of a .38 calibre revolver into the back of 20 year old Blair Aitken's head and pulled the trigger after robbing this student and gas station attendant of $944.

On May 5, 1997 Michael Hector, entering a guilty plea to three counts of first degree murder, was given a life sentence for 25 years with no eligibility for parole.

This past Easter weekend, the families of the murder victims learned that after only six years in a maximum security facility, this multiple murderer had been approved for transfer to Archambault Institution in Quebec. That institution is a medium security penitentiary.

This is not an isolated case. It is not a case out of the blue that we have never heard about. This is another example of the correctional system. There is example after example of murderers being transferred to medium, from medium to minimum, and from maximum to medium after serving only a few years of their incarceration. It is these cases that have resulted in Canadians' lack of confidence in the correctional system, their lack of confidence in the prison system and the parole system.

I suggest that the Liberal government has not tabled a constitutional amendment to deal with the Supreme Court's decision because deep down it agrees that prisoners should have the right to vote. Deep down the Liberal government believes that we should never take away the right that these murderers have to vote. The Liberals agree that Michael Hector has the right to vote. They agree that Paul Bernardo has the right to vote. They agree that Clifford Olson has the right to vote. Two of Canada's most notorious sex offenders and multiple murderers, Bernardo and Olson, the Liberal government believes should have the right to vote.

Given the cushy quarters of many of our resort-style prisons in which these and other violent offenders, including Clinton Suzack, are housed, the Liberal government is hoping that granting prisoners the right to vote may improve their chances in the next election. It has already been mentioned that Clifford Olson can hardly wait to vote for the Liberal Party. If the right to vote does not, then perhaps allowing prisoners unlimited access to many other rights should be an affront to Canadians as well.

Over the last couple of months we have noticed in the House where we have given the prisoners the rights to explicit movies, the rights to pizza parties and porn parties, and the rights to have their drugs in prison, to a certain degree.

Our military boot camps do not have TVs, let alone movie channels. They do not have posh weight rooms or air conditioning. If that is good enough for our young men and women who serve this country, it should be good enough for those who are trying to undermine this country and destroy the safety and security of our citizens.

The Solicitor General and Correctional Service Canada maintain that they have a zero tolerance toward drugs in prison but everyone in the House understands the rampant problem of drugs and alcohol in our federal institutions. Sitting as a member of the non-medical use of drug committee, I witnessed firsthand the problem of drugs in our prisons.

In my opinion, no prisoner who is not drug free should be eligible for early release or parole of any kind. If prisoners come up positive in a drug test they should not be eligible for early release. If they cannot remain clean inside, how will they ever remain clean outside? If they cannot function outside in society they will remain inside. Visitation should be strictly limited only to those willing to undergo a thorough search in prisons where drugs remain a problem.

Prisons should not be Holiday Inns and prisoners should not, in my opinion, be afforded the same rights as law-abiding citizens. Prisoners in federal institutions should not have the right to vote, regardless of what the courts say.

Again, I am confident that Canadians would agree. I therefore implore the House to call on the government to bring in measures to protect and reassert the will of Parliament against the court rulings that granted prisoners the right to vote.

International Transfer of Offenders Act

[Wayne Easter, Liberal, Solicitor General of Canada]

moved that Bill C-33, An Act to implement treaties and administrative arrangements on the international transfer of persons found guilty of criminal offences, be read the second time and referred to a committee.

Mr. Speaker,I rise today to speak at second reading of Bill C-33, the international transfer of offenders act. I am proud to sponsor the bill for a number of reasons, in particular because of the public safety and humanitarian objectives that the bill will further.

The current Transfer of Offenders Act came into force in 1978 following a United Nations meeting where member states agreed that international transfers were desirable because of increasingly greater mobility and the need for countries to cooperate on criminal justice matters.

The Transfer of Offenders Act authorizes the implementation of treaties between Canada and other countries, including multilateral conventions for international transfer of offenders. The Transfer of Offenders Act and the treaties serve essentially a humanitarian purpose. This is important. Imagine for a moment that a citizen of Canada is incarcerated in a country whose language and culture is foreign to him or her. Add to this an unfamiliar environment, a lack of contact with family and friends, food that is incompatible with the person's dietary requirements, unsatisfactory health and sanitary conditions and/or difficult conditions of incarceration.

It goes without saying that these factors increase the pains of imprisonment for offenders, and the hardships they face often translate into hardships for their families at home.

But there are other reasons for the legislation. The Transfer of Offenders Act serves an important public protection purpose. Offenders incarcerated in foreign states may be deprived of the opportunity to rehabilitate themselves in the absence of treatment programs in those countries, in the absence of a structured parole system, and in the absence of direct contact with family and friends in their home community. As a result, the chances of long term reintegration of these offenders, and ultimately of better public safety, are greatly reduced. This holds true even when offenders are incarcerated in a country with social standards and customs relatively similar to Canada's.

The Transfer of Offenders Act ensures that the offender does not escape justice. There is no free ride. When Canadian offenders are transferred to Canada to serve the remainder of the foreign sentence until warrant expiry, they arrive here under the supervision of the Correctional Service of Canada or of provincial correctional authorities who oversee their gradual and controlled reintegration into society. I think we can all agree that this is far better than simply deporting offenders back to Canada at the end of their sentence without any controls or supervision.

There is no doubt that most states wish to cooperate with one another on matters of criminal justice. All states attempt to deter prohibited conduct through the enforcement of criminal laws and penalties. Modern technology and global travel have led to increased opportunities for the commission of crimes in countries other than one's own. Therefore, states have a common interest in cooperating to prevent and respond to criminal conduct. This actually protects the sovereignty of states by preventing offenders from escaping justice, and this is exactly what the transfer of offenders scheme allows states to do.

Every year, about 85 Canadians are transferred to Canada under a treaty or a multilateral convention for the transfer of offenders. Since 1978, only technical amendments have been made to the Transfer of Offenders Act. Since then, more substantive issues have been identified. Policy issues relating to international transfers have expanded due to Canada's greater experience with treaties and legislative amendments brought about by the Corrections and Conditional Release Act in 1992, Bill C-41 on sentencing in 1995, and Bill C-45 on sentence calculation reform in 1996.

As a result, my department consulted with 91 private sector and government agencies and then conducted a comprehensive review of the Transfer of Offenders Act. This resulted in proposals to amend the legislation that would reflect traditional international treaty principles, close identified gaps, ensure consistency with other legislative provisions, and improve efficiencies.

In recent years, statements of purpose and principles have been added to federal legislation for several reasons: to provide a clear indication of the intent of the legislation; to ensure parliamentary endorsement of the approach and policy behind legislation; and to aid in the interpretation of provisions.

Bill C-33 would do exactly that. It would specify that the purpose of the new international Transfer of Offenders Act is to contribute to the administration of justice and the rehabilitation of offenders and their reintegration into the community by enabling them to serve their sentences in the country of which they are citizens or nationals.

Over the years, Canada has promoted key principles to guide international transfers of offenders, and in particular, the notion of the offender's voluntary consent to the transfer. This notion is based on the traditional humanitarian objectives of treaties. The prospects for an offender's successful institutional adjustment, rehabilitation, and community reintegration would likely be compromised if an offender were forced to transfer against his or her will. Foreign states may also be less inclined to approve a transfer on humanitarian grounds if the offender has not willingly consented. This is why Bill C-33 would reflect this important principle.

The bill also contains the important principle that offenders are to be informed in advance of the terms and manner in which their sentences will be completed in Canada. It would also require that a foreign offender requesting a transfer to his or her home country be provided with information from that foreign state about how the sentence is to be served in that state. This would ensure that the offender's consent to the transfer is truly informed.

The current Transfer of Offenders Act makes provisions for the transfer to Canada of young offenders committed to custody, but not for young offenders on probation. This is inconsistent with the provisions which allow for the transfer of adult offenders both on probation and in custody. Bill C-33 would close this gap by providing for the transfer of young offenders on probation in the new act. Moreover, there is no provision in the current act that allows for the transfer of Canadian children. Bill C-33 would close that gap as well by providing for the transfer to Canada of children less than 12 years of age. The bill also specifies that children transferred to Canada would not be detained by reason of the foreign sentence. They would be dealt with in accordance with the law of the receiving province or territory. By widening the net, so to speak, the bill would further the humanitarian objective of the act.

The current act provides that Canada may enter into a treaty, international agreement, arrangement or convention only with recognized foreign states. The dissolution of the U.S.S.R. and Yugoslavia highlights the problem of dealing with territories or jurisdictions not yet recognized as foreign states. Several years may pass before the jurisdictions are formally recognized as foreign states. In the meantime, Canada cannot enter into a treaty with them. Canadians incarcerated in these jurisdictions and offenders from these foreign entities do not have access to the international transfer process. There may also be instances where a treaty does not exist between Canada and a foreign state or where one has been negotiated but ratification is still years away.

However there are compelling reasons to return an offender to the home country such as harsh conditions of detention. Moreover, some foreign states may be less inclined to consider a formal arrangement with Canada but willing to negotiate less formal arrangements for the transfer of offenders on a case by case basis.

To provide access to international transfers in such circumstances, Bill C-33 would authorize the negotiation of administrative arrangements with a foreign state or a non-state entity. This would make the legislation more responsive to international developments. It would also allow Canada to bring its citizens home but always under the supervision of Canadian correctional authorities to oversee the offenders' gradual and safe reintegration.

The development of transfer agreements is beneficial to most offenders. To date, a limited number of states are bound by treaties and conventions on the transfer of offenders but the numbers are increasing and this is highly desirable. The main drive toward the international transfers of offenders is humanitarian. Serving a sentence in a foreign state increases its severity. An offender in this situation is likely deprived of contact with family and of the opportunity to reintegrate into society. This is not in the interests of the offender, the family or indeed the community.

Enforcement of a foreign sentence by the receiving state benefits the offender and both states involved. Objections to the effect that the enforcement of foreign sentences will infringe Canada's national integrity or that the foreign sentence will be improperly enforced in Canada are unfounded. These objections are fuelled by fear of the unknown rather than by informed policy reasons. The government and hon. members of the House should not allow such objections to stand in the way of the humanitarian effort that underlines Bill C-33.

Canada's Transfer of Offenders Act and associated treaties and conventions has been successful in achieving their goal and continue to be a permanent feature of the international relations between our country and many others. The progress made in this area is considerable. Since 1978, approximately 1,000 Canadians have been brought to Canada and more than 100 foreign offenders have been returned to their country of citizenship. The numbers are not large but that is because the notion of transfer of offenders is still relatively new and much is still being learned.

Let me say in closing that there is a clear need for legislative flexibility in Canada to further the humanitarian objective of transfers. There is a clear need for international cooperation in matters of criminal justice and there is a clear need for public protection with the safe and gradual reintegration of offenders into society.

Bill C-33 would respond to those needs by incorporating traditional international treaty principles, closing identified gaps and ensuring consistency with other legislative provisions. Bill C-33 would further contribute to these objectives by expanding the class of offenders who may be transferred and of jurisdictions with which Canada could enter into transfer arrangements.

For all these reasons, I urge the hon. members of the House to support Bill C-33 and see it through to completion.

Automotive Pollution Reduction Act

[Carole-Marie Allard, Liberal, Parliamentary Secretary to the Minister of Canadian Heritage]

Mr. Speaker, I thank the member for Saskatoon—Humboldt for the opportunity to answer his question.

The government is a strong supporter of equality and fairness for all Canadians. For the first time, Parliament set out the purpose and principles of sentencing in 1996.

One of the new principles found in section 718.2(e) of the Criminal Code is that all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders with particular attention to the circumstances of aboriginal offenders.

The need to consider restraint has been given increased importance as a result of Canada's high rate of incarceration when compared with many other industrialized nations and especially among aboriginal Canadians.

While codified for the first time in Bill C-41 in 1996, the idea of encouraging restraint in the use of incarceration is not new. A white paper was published under the authority of the Minister of Justice in 1982. It stated that restraint in the use of imprisonment have been endorsed by numerous other commissions and in various law reform reports.

There is a longstanding concern by this government and the Parliament of Canada with the overrepresentation of aboriginal people in the criminal justice system who are overrepresented in virtually all aspects, not just with respect to crime rates. Rates of offending, charging, incarceration and victimization are higher for them than for the non-aboriginal population. However the causes of this overrepresentation involve complex social and economic factors of poverty, addictions and disadvantage. They are also historical and not easily dealt with.

The purpose of including a specific reference to aboriginal offenders in the Criminal Code, 1996 and more recently in the Youth Criminal Justice Act, 2002 was to signal Parliament's concern over the especially high aboriginal incarceration rate and the socio-economic factors that contribute to this. It was to require sentencing judges to be sensitive to these matters. It was also for judges to consider the appropriate use of alternative sentencing processes including restorative, culturally sensitive approaches such as sentencing circles, healing circles and victim-offenders mediation.

In the process leading up to the passage of the Youth Criminal Justice Act in February 2002, Parliament carefully considered and agreed that young persons should have the benefit of subsection 718.2(e) of the Criminal Code that applies to aboriginal adults. The Senate refused to pass the Youth Criminal Justice Act without a similar provision for aboriginal young persons. The Minister of Justice agreed with the amendment.

After debate in the House, the Youth Criminal Justice Act, including the amendment, was passed. It should be noted that these provisions do not necessarily mean lighter sentencing. Sometimes being dealt with by a restorative justice program may even be more difficult, not just for the offender but also for the victim, family members and other community members.

The government is also focusing on programs that address the whole continuum of crime and aboriginal peoples so that long term changes will result, for example, funding of programs for aboriginal peoples through the national crime prevention program, the aboriginal justice strategy, the native court worker program, and youth justice. The government is committed to working with aboriginal peoples to ensure that changes result.

Divorce Act

[Roger Gallaway, Liberal, Sarnia—Lambton, ON]

Mr. Speaker, I am pleased to speak to the bill in general terms.

Bill C-22 is further evidence of why representative democracy is dead in terms of the Department of Justice. Section 18 of the British North America Act which gives this House the powers of representation of the public is dead. A motion was made recently by the Minister of Justice asking members of this place to waive their privileges, that is, section 18 of the British North America Act, our counterbalance to the enormous powers of the Crown as represented by the cabinet. Now we have a new evolution in that under Bill C-22.

Bill C-22 is a disgrace. It represents only the wishes and the views of perhaps seven lawyers in the Department of Justice. Bill C-22 is representative of nothing in this place. It is representative of nothing among the Canadian public, yet the justice minister brought it to this chamber.

In the 10 minutes allotted to me, I will quickly trace some of the history of this legislation.

In 1968 Canada's first Divorce Act was introduced. It introduced in some sense a no fault provision. In 1984 the act was amended and the then minister of justice in the Trudeau cabinet, Mr. MacGuigan, brought in some amendments to it. He introduced the concept of the best interest of the child, but, and this was a very traditional Liberal value, the best interest of the child included the joint financial obligations of the mother and the father to their children, and also the principle of maximum contact of the children with both parents.

The Divorce Act of 1984, or Bill C-10 as it was called ironically at that time, died on the Order Paper when Parliament dissolved in 1984. In 1985 the then minister of justice, Mr. Crosbie, brought in an act respecting divorce and corollary relief. He revamped and changed Bill C-10 but retained the best interest of the child concept and the concept of joint financial obligations toward joint and equal parenting.

I will flash forward to 1996 to Bill C-41 which introduced a revolutionary concept about child support. It put in place a regime where one parent, the non-custodial parent, would pay support and the custodial parent had no obligations. God bless those people in the other place because they resisted it. The bill passed on the very clear understanding that a joint committee of Parliament would be formed.

In 1997 that joint committee was formed by resolution of this House and the other place. That joint committee met throughout 1998 and made approximately 44 recommendations about fairness, about equality, about balance and most important, about putting two parents back into the life of a child when those parents divorced. I will read two pivotal recommendations of that committee.

Recommendation No. 5 of the joint committee report of December 9, 1998 states:

This Committee recommends that the terms “custody and access” no longer be used in the Divorce Act and instead that the meaning of both terms be incorporated and received in the new term “shared parenting”, which shall be taken to include all the meanings, rights, obligations, and common-law and statutory interpretations embodied previously in the terms “custody and access”.

Recommendation No. 6 states:

This Committee recommends that the Divorce Act be amended to repeal the definition of “custody” and to add a definition of “shared parenting” that reflects the meaning ascribed to that term by this Committee.

That is all rather interesting. At the same time, a massive public shift of opinion occurred.

A Compas poll showed that 89% of Canadians believed the stress of divorce was more severe than a generation ago, and that 70% of men and women said the courts do not pay enough attention to the needs of children.

In that same poll 62% of men and women said that they feel the courts pay too little attention to the needs of fathers and 80% of Canadians believed that the children of divorce must maintain ongoing relationships with their non-custodial parents. Also 65% of Canadians said that they feel it is a priority that the government should protect the rights of children to relationships with their non-custodial parents and that no custodial parent should be allowed to bar that access.

An Angus Reid poll on May 25, 1998 in the Globe and Mail said that 71% of residents of Ontario believe a woman's child support should be withheld if access is denied. Also it said that Ontarians are equally split as to whether or not jail terms are appropriate for access denial.

The end result was that in May 1999 the justice minister responded to the special joint committee. I quote from “Government of Canada Strategy for Reform” the Government of Canada’s response to the report of the Special Joint Committee on Child Custody and Access:

The Government of Canada is committed to responding to the issues identified by the CommitteeReport. The Special Joint Committee Report’s key themes, concerns and recommendationsprovide a foundation for developing a strategy for reforming the policy and legislative frameworkthat deals with the impact of divorce on Canadian children.

On October 12, 1999 the throne speech said “it will work to reform family law and strengthen supports provided to families”.

With respect to the throne speech of January 30, 2001, at page 8 of the Senate Debates it states:

The government will work with its partners on modernizing the laws for child support, custody and access, to ensure that these work in the best interests of children in cases of family breakdown.

On September 30, 2002 the throne speech said at page 4:

[The government] will also reform family law, putting greater emphasis on the best interests of the child...and ensure that appropriate child and family services are available.

What do we get out of all of that? What does this all mean? It means that in December last year, the justice minister tabled Bill C-22 which reflects nothing. It is not reflective of anything that three committees of Parliament have said ought to be done. It does not reflect anything that Canadians told the committee. It reflects nothing that polls across the country have shown.

A justice minister, who had been the justice minister for three months, arrived and said “I know more. I know better. I will tell you what is in the best interests of children and it is this thing I call Bill C-22”.

The end result is that we are now living in a place where the executive branch has given to the House a bill which reflects only the wishes of the so-called experts in the Department of Justice. We have been given a bill which flies in the face of everything this place stands for in terms of representative democracy. The bill is the status quo or less. The bill does not address children.

The bill brings in a new concept which is turning the Divorce Act into the form of a mini criminal code. It introduces something called domestic violence into the Divorce Act.

Since when did a civil act become a criminal act? Since when did we start passing laws in this place that would criminalize allegations? Since when did we say to half the population, “You have no place in the life of your children because you have divorced and we will allow, not Parliament which has an obligation to protect children, but judges to decide”.

This will continue to foment dissent and great bitterness. Most tragically, we will continue to see a generation of children of divorce who only know one parent, who only know one family and who will be raised under the guise of revolution if we allow the bill to pass. That is why members of this chamber must do what is best for the children of this country, not what is best for a justice minister or his bureaucrats. We must stand and say at second reading, no, we will not accept this.

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

Mr. Speaker, it is indeed unfortunate that the minister's duties called him away from the chamber so that he is unable to answer the questions that my colleague would like to put.

I appreciate the opportunity to speak to this very important legislation before us today. The government's Bill C-22 is an attempt to reform the child custody and access provisions of our divorce laws. However, like a baby's first faltering steps, Bill C-22 is a very timid, tentative attempt at reforming the antiquated Divorce Act. After so many years of waiting, the government should have been able to do better. Certainly the children of divorce deserve better.

Of all our Canadian laws, the Divorce Act is perhaps the most important to Canadians because it directly affects our families and their lives. With this in mind, it is especially important that we as parliamentarians embark upon debating this legislation with the utmost seriousness and careful consideration of the impacts it would have on Canadian families and, in particular, Canadian children.

Unfortunately divorce is an all too common occurrence in our society today. For some couples their marriages do not work out and require an annulment to provide a divorce of their relationship as husband and wife. To that end, governments provide a mechanism for people to separate under the laws that govern our nation.

The history of divorce law has constantly changed over time, evolving to meet the needs of society. The earliest form of divorce legislation enacted by the federal government was as recent as 1968. Before that time, married couples could obtain a divorce only under provincial legislation, using the strictest of conditions. Husbands could file for divorce on the grounds of a wife's adultery, yet the wife could file only on exceptional grounds, like incestuous adultery, rape, sodomy or bigamy, to name but a few. In Quebec and Newfoundland, a divorce required a private act of Parliament.

Thankfully, divorce laws provide a more accurate reflection of the realities Canadians face in their lives today. However, they still require improvement.

Although originally divorce legislation was created for the sole purpose of facilitating an end to a marriage, as a matter of consequence it also determines parenting arrangements for children of a relationship. For those families going through a divorce in the court system, children should be protected by the courts and the law. Ideally divorce law should provide a mechanism for a marital separation and deal with issues pertaining to the children of a relationship independently. After a divorce, both spouses still maintain their roles as parents and our laws should reflect that reality.

The Canadian Alliance has been a long time advocate of reforms to our divorce law. Article 27 of the Canadian Alliance declaration of policy states:

We will make the necessary changes to the Divorce Act to ensure that in the event of a marital breakdown, the Divorce Act will allow both parents and all grandparents to maintain a meaningful relationship with their children and grandchildren, unless it is clearly demonstrated not to be in the best interests of the children.

The Divorce Act as it is currently written has a chaotic set of rules dealing with parenting arrangements. The act uses terms such as custody and access to describe how children are dealt with by the courts. Bitter divorce cases over child custody often come down to declaring a winner and a loser. The “better” parent, as determined by a judge, gets custody of the kids while the other parent is only allowed access to them. As a result, the law fosters an adversarial, divisive focus on parental rights versus the best interests of the child.

For kids who have always lived with both parents, a divorce is a bad enough shock for them. The prospect of not being able to see one of their parents can be devastating. The concept of custody and access is completely foreign to children. Six year old children do not understand why they are only allowed to see their mother or father every other weekend. That is because they do not realize that a judge has decided when they can see their parents. However, in our world today too many children are forced to become acquainted with these stipulations.

Furthermore, we should not ignore the valuable role that other family members have in a child's life. Under our existing divorce law, grandparents' and other related family members' contact with the children could be substantially reduced after a separation. There are no provisions in the current Divorce Act to guarantee grandchildren access to their grandparents. In fact, grandparents must seek leave from a court before they may even apply for an access order.

Child custody arrangements are in one area of family law that invokes heated debate. Canadians are sincerely upset with how our legal system fails children. Since the government introduced this legislation on December 10 of last year, my office has received many e-mails and telephone calls on the subject of child custody and access. There is one e-mail in particular that I would like to mention because I feel it provides an accurate depiction of the capabilities of our current divorce laws. This e-mail came from a father describing his personal experience. His e-mail reads:

I'm a father of three children, ages 11, 13 and 15. On November 1, 2002 my wife was granted an ex parte order removing me from my home and our children. I believe I've been treated unfairly. Here is a brief summary of the recent events:

October 23: [I] learned my wife was having an affair with her boss.

October 24: I locked myself in our bedroom and called “911”, after my wife became enraged; kicking on the bedroom door, screaming, yelling, swearing, all within earshot of our children. The police came and found her foot stuck in the door.

October 29: My wife was served with my petition for divorce.

November 1: I received an ex parte order, after my wife lied to the judge convincing him that I was unpredictable and erratic. She also suggested I had become mentally ill. (This is a complete lie!).

December 2: The same judge acknowledged that the ex parte order was in error, however he still ruled in her favour where she now has “sole” custody of our three children and exclusive possession of the matrimonial home.

I'm self-employed, and had been working from an in-home office since 1995. My lawyer tried to convince the judge that I had been the primary caregiver, as my wife worked outside the home.

I believe the justice system favoured my wife because she is the mother. I have been a great father and husband! Can you offer me some help?

This is a very sad case and unfortunately all too representative of many others. Divorces such as this one happen way too often and they have nothing to do with mothers' rights versus fathers' rights. They are symptomatic of a legal system that simply does not care for the needs of children.

Having been through a divorce, I can say that not all divorces need to have such a devastatingly negative impact on children. Negative, yes, there is no question of that: When parents separate there is a negative effect on their children, but it does not have to devastate their lives for years to come. At the time of our separation my ex-wife and I knew that although our marriage had to come to an end, it did not mean our relationship with our children had to as well.

I want to speak for just a few minutes, not as a politician, but as a parent, for parents. About a month from now it will be five years since my separation from my former wife and three and a half years since my divorce. Even though my marriage of 25 years came to an end, my role as a parent did not. That is because it is the one job that never ends, and as parents we sometimes joke about this, but almost always in jest.

Being a parent is a terrific honour. It is something that is impossible to adequately explain to someone who is childless. That is why I fervently hope that all MPs who are also parents or grandparents and even a few who are geat-grandparents, I suspect, will take the time to really study Bill C-22 and look at these proposed changes from the perspective of a parent rather than a legislator to truly consider what is in the best interests of the children. Members must try to imagine the bill as it would apply to their families.

As I said, I want to take a few minutes to explain my own personal circumstances. About a month ago, I was fortunate enough to celebrate my 50th birthday. My children came to a surprise party here in Ottawa. My children now are 24 and 22, and my son is going to be 20 very shortly. They are young adults and I am extremely proud of these three young people.

They came to my birthday party and presented me with what is now one of my most prized possessions. It is upstairs in my office today, on a shelf. It is a pewter mug engraved with “World's Greatest Dad”. It is inscribed as well with “Love from Holly, Heather and Heath”, my three children. It is one of my most prized possessions, because I believe the most important job I have is not that of being a member of Parliament, although that is important, the most important job I have is that of being a parent and hopefully someday a grandparent. They are the roles that I think are most important in life. I have enjoyed the relationship I have built with my three children, at every stage of their lives. I often hear parents complaining a bit, perhaps, that their kids go a little off the rails when they are in their adolescent years, but I can truthfully say that although there were some trying times the love saw us through those tough times.

I have enjoyed the relationship I have been able to build throughout my lifetime and I cannot imagine not having had the opportunity to build that relationship with those three children. In fact, I cannot imagine a worse living hell than having anything bad happen to my kids. Every time we hear of children who are lost, like the seven young children lost in the avalanche a couple of days ago, our hearts go out to those parents and those families that suffer that indescribable grief.

However, I think a close second would be the frustration and anger that would well up in me if I were denied access to my children, for whatever reason. I cannot imagine anything worse than having my kids somewhere on this planet and not being allowed to have contact with them. I was lucky. As I said, my ex-wife was extremely reasonable. We just automatically decided that joint custody under today's laws was the way to go. There was no question about it from the beginning. We both recognized that we were both terrific parents and wanted that relationship to continue for our children. I was lucky. Unfortunately, so many are not.

Every effort should be made to isolate children from the negative impacts of a marital breakdown. Enhancing the roles both parents play in raising children after separation can mitigate some of the harmful influences. Our laws need to acknowledge the best interests of children by allowing them to maintain a meaningful relationship with both parents and even with grandparents after a divorce, with the natural exception of circumstances that are clearly not in the best interests of the child.

The best method of facilitating this legislative change is to provide an automatic shared parenting role for both parents. Instead of using the adversarial language of custody and access, the Divorce Act should only use a single shared parenting term to reflect custody arrangements.

I listened to the minister's speech a few moments ago. To be quite blunt, I was appalled with the fact that he said that the use of the term shared parenting in the Divorce Act would have led to confusion. That was his summation. Yet that was the centrepiece of the “For the Sake of the Children” report.

The many married couples who separate on amicable terms today already benefit from shared parenting, as in my own personal example, which I have revealed to the House. They benefit by working cooperatively together on matters affecting their children. Shared parenting does not mean that parents equally split up the time they spend with their children. It means that parents share the rights, the responsibilities and the obligations to their children.

Naturally, given the wide diversity of individual situations, we must also acknowledge instances where children should not have a relationship with a parent. Under very serious circumstances such as domestic violence the courts would not use shared parenting and one parent would be denied access to the child. My colleague from Red Deer has a private member's bill on this very topic. His bill, commonly referred to as Lisa's law, would protect children who have been sexually abused by a parent by not allowing judges to grant forced visitation to that parent.

Shared parenting should not be a foreign concept in our legal system. In 1989 the UN brought forward the convention on the rights of the child signed by 191 countries, including Canada. Within the convention, the United Nations recognized the need for children to have a relationship with both parents.

Of the many articles included in the convention article 12 refers to a child's guaranteed right to free expression in all matters affecting them. Article 3 states:

In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

The most pertinent article I would like to mention is article 9 which states:

Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child.

It goes on to read:

Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests.

The UN convention is clear on the matter of parental access for children. More important, Canada is bound by the convention due to our ratification in 1991. The United Nations is not alone in recognizing the merits of shared parenting. There are several places in the world that have properly guarded the rights of children during a divorce. Countries such as Australia, the United Kingdom and many individual states in the United States, have all established shared parenting laws. Some of these laws may vary on the individual details, however the objective remains the same. Both parents retain their shared parental responsibilities for their children, regardless of any changes to their marital relationship.

With other countries implementing a shared parenting strategy, why does Canada not have any shared parenting provisions in its family law? Canadians want the best for their children, yet it is not reflected in our laws.

Canada has refused to take the lead on providing the best for our children, nor has it followed. Instead, our government seems content with the status quo ensuring not to rock the boat by upsetting special interest groups.

The last time Parliament amended the Divorce Act was in 1997 with Bill C-41. During that period many Canadians were genuinely upset that grievances with child custody laws were not being addressed. As with any issue of importance to Canadians members of Parliament and senators heard many demands for the government to take action. After folding to public pressure the government authorized both the Senate and the House of Commons to form a special committee to examine this critical issue.

The Special Joint Committee on Child Custody and Access had a straightforward objective. It was vested with the mandate to:

...examine and analyze issues relating to custody and access arrangements after separation and divorce, and in particular, to assess the need for a more child-centred approach to family law policies and practices that would emphasize joint parental responsibilities and child-focused parenting arrangements based on children’s needs and best interests;

As the committee prepared to hold its first public meeting in February 1998, all members were aware of the importance and the complexity of the work they were about to embark upon. In total 55 meetings were held across Canada allowing over 520 witnesses to testify before the committee. These presentations provided an insightful look into the many different aspects of divorce and separation, from stories of heart-rending personal experience to social workers who worked with children of divorced parents on a daily basis. Committee members heard testimony regarding all aspects of divorce law.

The end result of the committee's work was a comprehensive report to Parliament laying out 48 recommendations for improvement. The final report entitled “For the Sake of the Children” provided an accurate representation of where the government could take action to help children. Each individual recommendation would make an important improvement. I do not have time to read all of the recommendations, but I will touch on a few.

The first recommendation calls for a preamble to be included in the Divorce Act making reference to pertinent principles of the United Nations convention on the rights of the child. As I mentioned earlier, I specified three articles that should be included in such a preamble.

The second recommendation reads:

This Committee recognizes that parents' relationships with their children do not end upon separation or divorce and therefore recommends that the Divorce Act be amended to add a Preamble containing the principle that divorced parents and their children are entitled to a close and continuous relationship with one another.

That is a great recommendation, but not one which we find in Bill C-22.

Number five calls for the terms “custody” and “access” to no longer be used in the Divorce Act and instead that the meaning of both terms be incorporated and received in the new term shared parenting. This is the very term that the minister has just mentioned that he did not want to use because it would be confusing. This term would then be taken to include all the meanings, rights and obligations, common law and statutory interpretations embodied in the terms “custody” and “access”.

To effectively implement shared parenting we must eliminate any cause of bias between parents in our legal system. Recommendation number eight calls for the common law tender years doctrine to be rejected as a basis for making a parenting decision. The doctrine is used by judges to help them determine the better parent for the child during the early part of its life. Many years ago courts automatically assumed this role could only be fulfilled by a mother, however today, it is not an accurate reflection of our society.

Shared parenting arrangements may not be ideal for every divorced couple, however our laws must encourage parents to work together on providing the best for their kids. The committee's report suggests that all parents seeking a parenting order from a judge should first submit a parenting plan with the court. Those parents who do not submit a plan would have to attend an education program to help them become aware of the post-separation reaction and detrimental impact that divorce has on children and the child's developmental needs at different ages. These parents would learn about the benefits of cooperative parenting after divorce and of mediation, and other forms of dispute resolution mechanisms available to them. By requiring a parenting plan, parents would be forced to at least consider the children by attempting to work out an agreement with each other.

Recommendations 15 and 16 are also very important. They call for amendments to the Divorce Act to require parents and judges to consider the best interests of the child and provides a list of criteria for deliberation. Recommendation 26 says:

...in matters relating to parenting under the Divorce Act, the importance of the presence of both parties at any proceeding be recognized and emphasized, and that reliance on ex parte proceedings be restricted as much as possible. Ex parte orders are directives issued by judges after only having heard one side of the story in a court case. These types of court orders are only supposed to be used under rare and exceptional circumstances, however all too often they are issued based upon false testimony.

The one area in which I find myself in disagreement with the report of the Special Joint Committee on Child Custody and Access is on the issue of presumption. Again, this is an area on which the minister touched on in his remarks. The report says that the committee did not believe the courts should be constrained by presuming, because in divorce, one size cannot fit all. I believe it is somewhat of a contradiction to state that shared parenting should be the norm, but we should not presume both parents are good parents and therefore quite capable of properly raising their children.

To those opposed to this presumption, I say that our entire justice system is based upon a fundamental basic presumption. We are presumed innocent until proven guilty. It is not up to those accused to prove their innocence in court. It is up to the Crown to prove their guilt beyond any reasonable doubt. It therefore puzzles, frustrates and angers me that the court does not apply the same principles consistently to divorcing couples. If both parents were believed to be good parents prior to separation, then why should the courts not presume them to be after divorce?

If we were to begin from the premise that shared parenting is in the best interests of the children, then the natural conclusion is that we must presume that both parents would be worthy of maximum contact with their children unless proven otherwise.

That being said, the report of the Special Joint Committee on Child Custody and Access is a quite a valuable document with lots of sensible proposals put forward despite the few areas I would like to see more heavily emphasized.

The members of the committee, regardless of political affiliation, and I know, Mr. Speaker, because you sat on that committee yourself, worked collaboratively on writing a persuasive report. Shamefully the government has dragged its heels on implementing these critical changes. It has taken over four years for the government to finally table legislation, but what it has presented before us is a shy and timid representation of what the report called for.

Let me explain by going over the government's reforms to family law. The first change would remove the terms “custody” and “access” from the Divorce Act. At first glance this appears to be a positive change however upon closer examination we find the terms are replaced with parenting order and contact order. Whether this change is merely semantics is anyone's guess. We do know that it is not shared parenting and it would not provide a presumption that children deserve access to both of their parents after a separation. If the government were serious about reforming divorce law it would not simply play around with the wording of the legislation.

The government has removed the maximum contact principle in subsection 16(10) of the existing legislation that would require judges to ensure children receive as much time with each parent as possible. In Bill C-22 there are no clauses that would replace this maximum contact principle.

The one area where the government's bill vaguely mentions this principle is in a new section that would require judges to consider the overall best interests of the child when granting a parenting order. The list of criteria overall is not bad. It loosely implements recommendations 16 and 17 of the committee's report, however, having a judge consider the amount of contact a child has with a parent along with 11 other decisive factors weakens a very important principle. It must be complimented with stronger statements in other sections of the bill.

Overall the criteria which comprises the best interests of children in clause 16.2 of the bill is nearly identical to those recommended in the committee's report. It provides a helpful guide to judges when deciding on parenting arrangements for children after a separation. One specific criterion was not mentioned in the “For the Sake of the Children” report. The government took the liberty of adding “The history of care for the child”, as another decisive factor for the courts to consider.

For all intents and purposes a spousal agreement regarding the care a child receiving preceding a divorce has absolutely nothing to do with what parents would agree to is appropriate care after divorce. Understandably couples make tough decisions when children enter their lives. They must decide who will take care of the child and who will continue to work to provide an income. For most families the higher income earner will continue to work outside of the home or perhaps a parent who has better than most maternity or paternity benefits will stay home with the child.

Parenting arrangements before divorce should have no relevance on the care a child will receive after a separation between parents. By examining Bill C-22 it is apparent that the government has gone through the “For the Sake of the Children” report selectively choosing which recommendations it wishes to legislate. If the government wants to provide Canadians with the real change that they are so desperately seeking, it should have brought forward a bill including all the relevant recommendations. After four years even the government should have been able to do much better.

Since becoming a member of Parliament I have worked very hard to change the Divorce Act to allow children a better opportunity to be with both parents after separation. I have introduced a private member's bill on the subject some five times since 1996. In 2001 my bill overcame many obstacles to finally be debated on the floor of the House of Commons.

Even then the government turned its back on the children of divorce. As I mentioned earlier, it argued that by using a one size fits all approach to parenting after divorce would hurt children in the end. It will use the same old argument, indeed the minister did already this morning, against shared parenting.

It is true that for each divorce case before the courts there are individual circumstances that must be considered, but we must acknowledge the assumption that both parents deserve an equal role in raising their children.

Just before I get to my summary, I want to refer to another letter that I received. I think this letter probably went to all members of Parliament of all parties. I will not have enough time to read the entire letter but I think members will get the drift. The letter is dated July 2, 2000 and it was sent to the Prime Minister. It reads:

Dear Mr. Prime Minister

I am the 14-year-old daughter of Darrin White, the father who recently took his life in British Columbia as a result of the frustration and hopelessness caused in dealing with Canada's family justice system. Although the justice system was not 100 percent the cause of his death, based on what I and members of my family have seen, it was the biggest factor. My father took his life mostly in part because of the injustices being perpetrated against him by what many Canadians say is a biased and morally corrupt Canadian family justice system. Our family justice system seems to allow good fathers to be destroyed while it allows vindictive and revengeful mothers to rule over the court.

Prior to my father's death, he told me of the anguish he was going through trying to see his children. He told me of the abuse that his wife subjected him to. She did not want him to have a relationship even with me, his own daughter, because she was jealous. He told me of the frustration in dealing with the courts and the lawyers. He told me how the court did nothing except put further barriers to him seeing his children.

As a young Canadian I can only say that I am utterly ashamed to see how the country I call Canada treats fathers in its courts. It is a disgrace! I know my father was a good man and a good father. He did not deserve to be pushed over the edge as he was. He did not deserve to be kept from seeing his children. He obviously reached a point where he could see that justice was beyond his reach and for reasons that only God will know, decided that taking his life was the only way to end his suffering.

From what I have learned about the family justice system in this country, Canada is not the home of the proud and the free. In my view, Canada has become a safe haven for corrupt lawyers and biased judges who think nothing about the lives of the children and parents they destroy every day in our family courts.

I have learned that Canada's Justice Minister...has been stalling legislation about shared parenting which is intended to prevent the kind of tragedy that has been forced upon my family. I understand that a special committee recommended that the justice department should promote a concept called shared parenting. If shared parenting had been in place before my father took his life and if our system of justice guaranteed the rights of children to see their parents, I have no doubt in my mind that my loving father would be alive today. All he wanted was to see his children, but it seems that our justice system would not give him that.

The letter goes on and on. This is from the 14 year old daughter of a gentleman who felt his only way out was to commit suicide. It was signed by Ashlee Barnett-White, the daughter of Darrin White from Prince George in my riding.

In summary, the Canadian Alliance is opposed to Bill C-22 as it is presently worded for the following reasons.

First, Bill C-22 completely misses the basic fundamental principle laid out in the report “For the Sake of the Children”, that modern Canadian society is best reflected by shared parenting.

Second, Bill C-22 would not ensure that our courts and judges receive the direction that first and foremost it is in the best interests of the children to maintain maximum contact with both parents following divorce.

Third, Bill C-22's passing reference to the relationships between children of divorce and siblings and grandparents in clause 16.2(i) is insufficient to ensure the survival of those vital relationships following divorce.

Fourth, any agreement made between the parents regarding the best parenting arrangement prior to separation and divorce is completely irrelevant following separation and therefore any reference should be removed from clause 16.2(c).

Fifth, Bill C-22 drops the so-called friendly parent rule that at least provided some direction to the courts.

For those and many other inadequacies addressed in the 48 recommendation of the “For the Sake of the Children” report, we will be proposing substantive amendments at committee stage to fix these deficiencies.

I sincerely hope that, unlike so many previous bills on so many issues that I have seen go through the House in the last nine years that I have been an MP, the government will allow those amendments to pass so that not only the Canadian Alliance can support Bill C-22 but all Canadians.

I also have an amendment. I move, seconded by the member for Edmonton North:

That the motion be amended by deleting all the words after the word “That” and substituting the following therefor:

Bill C-22, an act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act, the Garnishment, Attachment and Pension Diversion Act and the Judges Act and to amend other acts in consequence, be not now read a second time but that the order be discharged, the bill withdrawn and the subject matter thereof referred to the Standing Committee on Justice and Human Rights.