Bill C-29 (Historical)

An Act to amend the Patent Act

This enactment amends the Patent Act to permit the correction of past incorrect fee payments in certain situations and provides that the standing committee of each House of Parliament shall consider candidates for appointment to the advisory committee.

Patent Act

[Jerry Pickard, Liberal, Parliamentary Secretary to the Minister of Industry]

Mr. Speaker, I am pleased to rise today in my place to begin the third reading of Bill C-29, which makes technical amendments to the Patent Act. Hon. members will recall that the changes provided in this bill are strictly technical and narrow in scope. We have made some further changes in the bill since it was introduced in the House last December.

The modifications to the bill are the result of representations received from intellectual property practitioners and that were presented to the committee which looked at some of the serious concerns.

Neither of these amendments materially changes the purpose or objective of Bill C-29 but both amendments are required for the bill to be effective in protecting intellectual property rights.

Before addressing the substance of these two amendments, let me remind this House of the issue at hand. Let me reiterate the points that were made during second reading of this bill.

We introduced Bill C-29 to respond to an unexpected court decision known as the Dutch case. The decision has raised uncertainties about the status of some patents. In order to apply for and maintain a patent application or patent, a set of fees must be paid. One of the factors affecting the fee payment is the size of the entity that is applying for the patent. If someone is a small entity, defined as an individual, a university or a business with 50 employees or less, the entity's fees will generally be half of those of large entities.

The definition of large and small entities sometimes becomes clouded when a business begins as a small entity but grows to a large entity, or a small entity is merged into a large entity, for example. This uncertainty of entity size sometimes leads to mistakes in determining the amount of fees that should be submitted.

The Commissioner of Patents administers the system and sets and collects the fees. In the past, if an entity had made an honest mistake in determining the level of the fee, the commissioner acted on the principle that the entity had acted in good faith. He gave the benefit of doubt and the entity was given an opportunity to top up his own fees.

That was the practice, but the Dutch case has terminated this practice and we now need to take corrective action, as the court found that the Commissioner of Patents had no legal authority to accept top up payments.

The case was appealed to the Federal Court of Appeal and on March 7, 2003, the court agreed with the lower court that late top up fees could no longer be taken.

Furthermore, the Federal Court of Appeal ruled that the determination as to whether an applicant would be considered a small or a large entity is to be fixed at the time of entry into the patent regime. This interpretation means that any applicant who had entered as a large entity and later became small, and paid commensurate fees, suddenly found themselves in the position of having underpaid the prescribed fees. These applicants and patent holders risk invalidation of their rights.

This creates a very difficult situation for holders of patents who may have not paid the right fee. An estimated 7,000 patents and applicants could be declared invalid if contested in the courts on the grounds that certain fees have not been paid at the proper entity level. Until this bill is passed, there is no legal way for these patent holders and applicants to rectify their situation. Bill C-29 seeks to end that confusion and remove the uncertainty.

As hon. members will recall from the second reading debate, the amendments contained in the bill provide a 12 month timeframe for patent holders and applicants who are negatively affected by the court decision to maintain their rights by making necessary top up payments.

This brings me to the two amendments to Bill C-29 that have been recommended by intellectual property practitioners in their representation to the committee.

The first amendment can best be described as an amendment to provide greater certainty. After the introduction of the bill on December 3, the Intellectual Property Institute of Canada advised the Canadian Intellectual Property Office that as currently worded it is not absolutely clear that clause 2 of Bill C-29 would apply to complex transitional provisions already found in the Patent Act.

We want to make it very clear that clause 2 will apply to the Patent Act's transitional provisions. Following the recommendation of the committee, the bill has been amended by adding at the end of the proposed new section 78.6 the following text:

(5) For greater certainty, this section also applies to applications for patents mentioned in sections 78.1 and 78.4.

The House will readily see that this amendment does not change the purpose of Bill C-29. In fact, it greatly clarifies the intent and ensures that all patents and patent applications caught by the Dutch decision are covered by this bill. Not proceeding with the amendment might leave some uncertainty in a bill that has been specifically introduced to clarify an uncertainty.

This brings me to the second amendment recommended at the committee stage. It also responds to the representations of intellectual property practitioners. They have told us and the committee that the requirement to provide information with respect to “the day on which the prescribed fee was paid” would create a significant compliance problem because patent agents may not being able to provide such information in every situation.

What would happen in the event that a patent agent could not accurately report the day on which the fee had been paid? What would happen, for example, if the fee had been paid many years ago and the relevant document is no longer available? According to the bill, as introduced last December, this would cause otherwise valid patents or patent applications to still be at risk.

The inability to provide information concerning the day on which the fee was paid should not invalidate a patent. Our objective is to create a system where innovation is protected, not one where innovators can be tripped up by red tape.

In the amended bill before us, the specific requirement of section 78.6(2) to provide information on the day in which the patent was paid has been removed. As in the case of the first amendment, this will not materially affect the purpose or objective of Bill C-29. It would make sure that the requirements can be met by practitioners.

These amendments are straightforward. They improve a bill that is designed to provide technical amendments to the Patent Act, amendments designed to clear up uncertainties. The bill had speedy passage at second reading and there is nothing in the minor amendments that would warrant a prolonged debate during third reading.

Although these technical amendments may seem like minor adjustments, they are in fact very important to the holder of patents potentially in default of the Dutch case. We should not delay this legislation. We should move quickly to clear up the uncertainties and thereby maintain Canada's reputation as a country that protects intellectual property rights.

Finally, let me remind the House that Bill C-29 also makes a technical amendment to the Jean Chrétien Pledge to Africa legislative provisions adopted during the last Parliament. It provides the other place with equal participation in assessing and recommending candidates to an expert advisory committee. This amendment clears up an oversight in the original legislation. No objections or concerns regarding these provisions were raised at the committee hearings.

I urge hon. members to pass the third reading of Bill C-29 as quickly as they can and allow it to proceed to the other place.

Committees of the House

[Brent St. Denis, Liberal, Algoma—Manitoulin—Kapuskasing, ON]

Mr. Speaker, I have the honour to present, in both official languages, the first report of the Standing Committee on Industry, Natural Resources, Science and Technology in relation to Bill C-29, an act to amend the Patent Act.

Patent Act

[James Rajotte, Conservative, Edmonton—Leduc, AB]

Madam Speaker, I appreciate the opportunity to speak to Bill C-29, an act to amend the Patent Act.

This is a housekeeping bill, in our view, which addresses two separate patent related issues. The first issue it addresses deals with the Jean Chrétien pledge to Africa act, which does help to facilitate the flow of drugs to deal with HIV-AIDS, malaria and tuberculosis to least developed nations.

The bill called for the creation of a committee of experts to advise the government on what pharmaceutical products should be eligible for export under the licensing regime set up by the act. The first part of Bill C-29 amends the act to allow the Senate, not just the House of Commons, to assess and recommend potential candidates for the committee of experts.

We support this specific aspect of the bill, although we would ask for guidance from the Senate as to which committee or committees should actually deal with this issue.

The second part of the bill deals with patent fees and entity size. Fees are required at all stages of a patent's life: application, review and maintenance. Canada and the United States have separate fee structures, depending on whether a business applying for a patent is a small entity or a large entity. The separation based on size is quite common.

Until recently, a company that filed for a patent under the small business fees structure and then became a large business, or vice versa, was granted flexibility in its patent fees. The company could pay a top-up or could reduce its fees due if the enterprise size changed. The top-up scheme has caused considerable administrative trouble for patent agents and it is my understanding that they would like this matter remedied as quickly as possible.

A court case has clarified that there should never have been such a top-up scheme. The courts ruled that the entity's status is determined when a patent regime is first engaged. Thus if the company files as a small business at day one, it is considered a small business for the life of the 20 year patent.

This set of amendments is required to prevent possible lawsuits for an estimated 7,000 patent holders and patent applicants on the grounds that their fees have not fully been paid and thus their patents could be declared invalid. This was the Dutch industry's case.

We support these amendments as well in a sense that they will certainly reduce a lot of the legislation or the litigiousness that could result from this. We think that the size of the company when it gets a patent should determine its size for the life of the patent.

In conclusion, we also support the amendments to the interpretation of schedules because we would like Canada to have a clear intellectual property framework.

We look forward to dealing with the bill at committee. We hope the legislation will pass as quickly as possible.

[Jerry Pickard, Liberal, Parliamentary Secretary to the Minister of Industry]

Mr. Speaker, I am pleased to begin the second reading of Bill C-29, a bill that makes technical amendments to the Patent Act. The changes provided in this bill are strictly technical and narrow in scope. I am hopeful that the House and the other place will have no problem passing this bill expeditiously.

It is very important that we move quickly on this bill for, although it deals with details that are of a technical nature, the jobs of many Canadians and the competitiveness of Canadian companies in a global marketplace could be stake if we delay.

Canada's reputation as a good place to invest and perform leading edge research and development may also be hurt if we do not move quickly to clear up the technical issues covered by the bill.

First, what the bill represents is a response to an unexpected court decision that has raised uncertainties about the status of some patents. It is designed to clear up the confusion about the patent fees and potentially the status of a significant number of patents. It is a measure to avoid clogging the courts with patent infringement lawsuits, and the sooner we pass the bill the sooner we can remove the element of uncertainty regarding Canada's patent regime.

I want to provide the House with some of the background that made these technical amendments necessary. The Patent Act is designed to protect the intellectual property of investors. The patent offer the investor a monopoly on the creation for a specific period. In this way we provide incentive for research and development so that people will invest the time and money it takes to devise and perfect a new product.

In order to apply and maintain a patent application or patent, a set of fees must be paid and these fees vary according to several factors. One of the variables today is the reason that we have a problem.

The fees paid for patent protection vary according to the size of an entity. If one is a small entity defined as an individual, a university or a business with 50 employees or less, the fees will generally be half of those of a large entity.

This distinction between small entities and large entities gave rise to the technical amendments that we seek to address. Those who filed patents and paid their fees always had to ask themselves whether they should be filing as a small entity or a large entity. On the surface, the definitions are straightforward, but over time the situation became much less clear.

What happens, for example, if a person starts off as a single individual inventor and his or her company grows quickly so that it becomes a large entity? What happens when, for instance, a person is a large entity with more than 50 employees but decide to break up into a company of smaller components, one of which maintains the patent? What happens when a person is a small entity but enters into an agreement with a large entity for exclusive use of one's invention?

Above all, with respect to the technical amendments before us, what happens if a person makes a mistake? What happens if a person files as a small entity and then realizes that he or she should have filed as a large entity instead?

Those are important questions for innovators, especially for individuals and small businesses who have the opportunity to use their ingenuity and innovation to grow a business.

The Commissioner of Patents is responsible for addressing the system and setting collective fees. In the past, in the case of small and large entities related fees, the commissioner acted on the principle that an entity that had made an honest mistake in determining the level of the fees should be given the benefit of the doubt. If the entity had submitted the incorrect amount in good faith and it was later determined that the amounts submitted was incorrect, the entity could top up the fees to maintain their rights in accordance with the act.

That was the practice and many individuals, small businesses and universities maintained their protection under the system that allowed for corrective measures, or so they believed.

However all this has changed as a result of a court case know as the Dutch case. In patent infringement suit brought against Dutch Industries by Barton No-Till Inc. and Flexi Coil Ltd., Dutch Industries successfully maintained that the patent had been abandoned because the proper fees were not paid. Moreover, the judge found that the Commissioner of Patents had no legal authority to accept top up payments.

The court decision means that the top up practice is no longer accepted. This opens a Pandora's box of potential legal trouble. It has created the possibility of a Dutch defence against patent legislation if a company is found to have used the top up policy in order to correct and oversight.

This case was appealed to the Federal Court of Appeal and on March 7, 2003 the court rendered its decision. The Federal Court of Appeal agreed with the lower court that late top up fees could not be corrected.

Furthermore, the Federal Court of Appeal ruled that the determination as to whether an applicant would be considered a small or a large entity is to be fixed at the time of entry into the patent regime. That interpretation by the court was inconsistent with the long-standing practice of fees varying over the life of a patent if the entity changed size.

This new interpretation meant that any applicant who had entered as a large entity and later became a small one, and paid commensurate fees, suddenly found themselves in the position of having underpaid the prescribed fees. These applicants and patent holders risk invalidation of their rights.

This creates a very difficult situation for holders of patents who may not have paid the right fee. We want to end this confusion. We want to remove the uncertainty as it relates to those who have used the flexibility as described. In fact, in August 2003 the government announced that it would amend the Patent Act to clarify the payment of certain patent fees.

The amendments contained in the bill provide a 12 month timeframe for patent holders and applicants who are negatively affected by the court decision to maintain their rights by making necessary top up payments. In effect, we are giving patent holders the right, for a 12 month period, to continue making the arrangements that the courts found they had no right to do under the current legislation.

The longer this legislation is delayed the more likely the number of patent infringement court cases would increase. This would have an adverse effect on Canada's reputation as a good place to do business. It would undermine our reputation as a country that protects intellectual property rights.

The intellectual property stakeholders have been consulted on these technical amendments and they support the patent provisions of the bill. I would urge hon. members to pass it as quickly as possible and remove the uncertainty.

The second issue dealt with in the bill involves the legislation that was passed in the last Parliament as Bill C-9, the Jean Chrétien Pledge to Africa Act. Hon. members who were present in the last Parliament will recall that this was an initiative to provide lower cost pharmaceutical products to least developed and developing countries. At its heart, the bill aimed at helping those countries fight HIV-AIDS, malaria, tuberculosis and other public health problems by giving them easier access to patented medicines.

Bill C-9 amended the Patent Act and the Food and Drugs Act. It provides the legislative framework that enables Canada to authorize someone other than the patent holder to manufacture a lower cost version of a patented medicine for export to a developing country. Canada was very proud to be one of the first countries to take such action.

However there was a technical oversight in that legislation, one which we seek to correct now. An expert panel, to be appointed by the Minister of Industry and the Minister of Health, was to be named to advise the government on which pharmaceutical products should be eligible under the regime.

In response to recommendations from some hon. members from across the floor, the government agreed that the appointment of this panel would be reviewed by a committee of the House. Of course, the other place also has a rightful responsibility in matters that come before Parliament, and a committee of the other place should have the right and authority to review these appointments as well.

Hon. members who were present during the final weeks of the last Parliament will recall the urgency of getting this humanitarian and life-saving legislation through Parliament before the election writ was dropped. There was no time to make the necessary amendments to Bill C-9 that would ensure the other place was given the same rights of review as the House. However the then minister of industry gave the other place her commitment that at the next available opportunity the government would correct that oversight in the new Parliament.

The next available opportunity is now. We wish to take advantage of the need to pass technical amendments affecting payment of fees to make a further technical amendment that would provide the other place with its rightful responsibility to review the appointments to the expert panel.

This is not a controversial measure. It is a step to do the right thing and correct an oversight of the last Parliament, an oversight that, were it not for the generosity and spirit of the other place, might have killed the bill at that time.

Both of the measures in Bill C-29 are very technical in nature. Neither of them is controversial. Both of them deserve swift passage and that is why I urge the House to focus sharply on the technical content of the bill.

This is not an overhaul of the Patent Act. It does not break new ground in how we protect and encourage innovation in Canada. I urge hon. members from both sides of this House to join me in voting for the passage of this bill as soon as possible.

[David Emerson, Liberal, Minister of Industry]

moved that Bill C-29, an act to amend the Patent Act, be read the second time and referred to a committee.

Business of the House

[Tony Valeri, Liberal, Leader of the Government in the House of Commons]

Mr. Speaker, I thank my hon. colleague for his cooperation.

Today we will conclude consideration of the business of supply for the present period.

Tomorrow we will start with Bill C-10, the civil law harmonization legislation. I believe that there is agreement to do this at all stages.

Then we will start on a list that will carry us into next week: report stage and second reading of Bill C-18, respecting Telefilm; reference to committee before second reading of Bill C-27, respecting food and drugs; second reading of Bill C-26, respecting border services; report stage and second reading of Bill C-15, respecting migratory birds; second reading of Bill C-29, respecting patent regulations; and of course, completion of business not finished this week.

My hon. colleague has also indicated cooperation on Bill C-20. I know that there are some ongoing discussions with respect to a quick completion of Bill C-20, the first nations fiscal bill. We would hopefully get to that before we adjourned.

On Monday evening there will be a take note debate on the problems in western Canada with pine beetles. Accordingly, I move:

That, pursuant to Standing Order 53.1, a take note debate on pine beetles take place on December 13, 2004.

Patent Act

[Tony Valeri, Liberal, for the Minister of Industry]

moved for leave to introduce Bill C-29, An Act to amend the Patent Act.

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

Criminal Code

[André Bellavance, Bloc, Richmond—Arthabaska, QC]

Mr. Speaker, I am rising to speak on Bill C-10, as my distinguished colleagues in the Bloc Quebecois have done before me. The Bloc Quebecois supports referring the bill to committee before second reading.

Bill C-10 is the Act to amend the Criminal Code (mental disorder) and to make consequential amendments to other Acts. It is the former Bill C-29, which had reached second reading in the last Parliament before dying on the Order Paper with the election call in June. On the issue of Bill C-29, I would like to acknowledge the work of our justice critic, the member for Charlesbourg—Haute-Saint-Charles.

We are of course in favour of the principle of this bill and of referring the bill to a committee before second reading, but we have to ensure that the proposed amendments will effectively protect the rights of people suffering from mental disorder, while protecting society. This is important also. Amending the Criminal Code is always a sensitive issue. We are dealing with subjects that are difficult for the victims or those close to the victims, who were affected by a crime. Those people have to be protected too. The amendments to the Criminal Code must be carefully measured.

The recommendations made by the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness were not all accepted by the government. We will have to pay special attention when the bill goes to committee. I have no doubt that my colleague, the justice critic for the Bloc Québécois, will be able to keep things in perspective and to do a good job as usual.

We had another example of democratic deficit—my colleague from Lotbinière—Chutes-de-la-Chaudière mentioned this earlier—when the unanimous report was not followed up in its entirety. It was followed up, but not entirely. I would answer that, even though it was almost entirely agreed upon, too often in the past we have seen the government ignore a unanimous report. I am thinking of what affects many people, about the unanimous report on employment insurance. This is deplorable.

However, now, there is an amendment that is quite important and interesting: committee reports will be voted on. Fortunately, we have a majority in the committee. Let this be a warning to the government.

The recommendations that were not followed up will then have to be examined once again in committee. In C-10, 5 of 19 are not there. We will be very vigilant in this regard.

At this time in my short speech, I would like to summarize the bill for the many people who are watching us and the House.

This enactment amends Part XX.1 of the Criminal Code governing persons found unfit to stand trial or not criminally responsible on account of mental disorder. The amendments, among other things, include

(a) repealing unproclaimed provisions related to capping, dangerous mentally disordered accused and hospital orders;

(b) expanding the authority of Review Boards by enabling them to order an assessment of the accused, adjourn hearings and protect the identity of victims and witnesses;

(c) permitting the oral presentation of victim impact statements at disposition hearings and adjournments allowing the victim to prepare the statement;

(d) permitting Review Boards to extend the time for holding a review hearing to a maximum of 24 months in certain circumstances;

(e) permitting the court to hold an inquiry and order a judicial stay of proceedings for an accused found unfit to stand trial, if the accused is not likely to ever be fit to stand trial and does not pose a significant risk to the safety of the public and a stay is in the interests of the proper administration of justice;

(f) specifying that the transfer provisions require the consent of the appropriate Attorneys General in all cases and enabling transfers of an accused who is not in custody; and

(g) allowing peace officers arresting an accused who is in contravention of an assessment order or a disposition to release, detain, compel the appearance of or deliver the accused to a place specified in the order.

This enactment also makes consequential amendments to other Acts, including the National Defence Act.

This bill applies to people with mental disorder, people who are declared not criminally responsible or unfit to stand to trial on account of mental disorder.

I studied law for a year and a half and I remember some of my courses. I switched majors and went into communication and became a journalist. This got me into courthouses nonetheless—as a journalist of course, not as a client. I had the opportunity to hear a number of cases including some that were very difficult because, as I was saying earlier, the victims or the accused did not even know they had been involved in a crime.

In criminal law, for an accused to be declared not criminally responsible on account of mental disorder, it must be shown that the accused was suffering from a mental disorder at the time of the offence that rendered him or her incapable of either appreciating the nature and quality of the act or omission or of knowing that it was wrong.

We in the Bloc Québécois feel it is important that the bill protect the rights of people declared not criminally responsible or unfit to stand to trial on account of mental disorder. We also have to protect public safety. It bears repeating because it is very important. I am convinced, as I was saying earlier, that we will have the opportunity to be very vigilant about this in committee.

We have to avoid a repetition of such tragedies as those mentioned by the Canadian Association of Community Living in the brief it submitted on January 25, 2000, to the Standing Committee on Justice and Human Rights. We talked for instance about some people with developmental disability who were held without cause at the Forensic Psychiatric Hospital, in British Columbia.

Let me quote one of the examples I found on the association's Web site. A 30 year old aboriginal man with a developmental disability was charged with mischief in 1997 and found not criminally responsible on account of a mental disorder. He has been held at the Forensic Psychiatric Hospital since then and has appeared regularly in front of the BC Review Board. At his June, 2000 hearing it was confirmed that the Forensic Psychiatric Hospital was not an appropriate setting as the hospital is not geared to deal with individuals with developmental disabilities.

Recognizing that this individual had been kept in custody for a minor offence for more than three years in an institution that was not appropriate to meet his needs, the Review Board ordered a conditional discharge to the community. To date, appropriate community care and treatment has not been forthcoming and he continues to be held at the Forensic Psychiatric Hospital.

This case and many others “stress some of the shortcomings of Canada's criminal justice system to properly address the rights and needs of all citizens. Some people, especially people with intellectual disabilities, fall through the cracks of the system”. That is what the Canadian Association for Community Living said in its brief to the Standing Committee on Justice and Human Rights on January 25, 2002.

In conclusion, the report of the standing committee confirmed that the 1992 Criminal Code provisions regarding persons found unfit to stand trial or not criminally responsible because of mental disorders needs improvement. You can count on the Bloc Québécois to do what is needed to ensure that the bill reflects the real wishes and needs of persons with mental disorders and the organizations that support them, and that it also safeguards public security.

[Odina Desrochers, Bloc, Lotbinière—Chutes-de-la-Chaudière, QC]

Mr. Speaker, I am pleased to speak to Bill C-10, an Act to amend the Criminal Code (mental disorder) and to make consequential amendments to other Acts.

When I was a journalist, I worked as a crime reporter for two years and had the opportunity to follow some highly unusual trials. I saw both sides, crown and defence attorneys alike, struggle with this delicate question.

When a crime occurs, there are always factors to consider in such an unfortunate incident. Sometimes, those factors are linked to someone who has trouble speaking for himself at trial. It then becomes more difficult and complex for the courts to deal with these issues.

A first step was taken by this House on March 29 of this year. At the time, the Minister of Justice introduced Bill C-29. As is the tradition, the bill was read a second time and referred to a committee so that parties, and especially the Bloc Québécois, could propose amendments to enhance the bill. As I said at the beginning of my speech, the purpose of the bill is to more clearly define this delicate question, which is addressed in the Criminal Code.

Even though we were, at the time, more concerned with pre-electoral stuff than with political issues, committee members were able to come up with unanimous proposals. As I pointed out last Friday, since the start of this Parliament, the Liberal government has kept to one scenario. It reintroduces bills but without taking into consideration the work that was done in the previous session.

When the government acts in this way, it penalizes those affected by this bill. They are already suffering from mental disorder, and then are penalized by the fact that, once again, the Liberal government has neglected to take everything that was said and done in the previous Parliament into consideration. Hon. members are no doubt aware that we are making use of a procedure which allows us to refer the bill to committee earlier in order to get it passed more quickly. Once consideration of it is undertaken in committee, I hope that the committee chair will take time to look at what has already been done, and that the committee will automatically allow all the motions passed that time.

If this government keeps on in this way, the Order Paper will become increasingly weighty. We are operating in the context of a minority government with all sides are trying to make some progress. But, ever since we came back in early October, this government seems to be trying to constantly shunt aside proposals and motions, and most particularly the huge amount of work already done in the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness.

I hope that, when the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness comes to examine this matter, it will immediately take into consideration everything that has already been done.

The Bloc Québécois is in favour of Bill C-10 in principle, but steps must be taken to ensure that the proposed amendments protect the rights of people with mental disorders effectively and properly safeguard public safety.

Unfortunately, many people are prejudiced against the mentally ill. They deserve more compassion and greater understanding, because they are often accused of doing things that they are not even aware of having done. That is why there are provisions in the Criminal Code to protect them.

The recommendations of the justice and human rights standing committee that were not taken into consideration by the federal government deserve to be again considered in committee in order to understand the reasoning of those who drafted this bill.

When a minister introduces a bill, he certainly undertakes consultation. There is something we are having trouble understanding. Those who drafted Bill C-10 have left out some important parts of Bill C-29, which the previous government had introduced.

I remember April 29, 2004, in this House, when, once again, there was very little discussion of policy. There was more talk about the pre-election process. But there was my colleague from Repentigny, who is very well known and who sits near me. These days, he can be seen in the major debates on the issue of public accounts. I am convinced that he will straighten out the Liberals, once again, on everything this government has done that seems a bit wrong.

I do not need to repeat all that has been said at the Gomery commission. I could table piles of documents I have read in the public accounts committee and tell you what has been happening. I am sure the hon. member for Repentigny will take over.

I return to April 29, 2004. My colleague was saying that the Bloc Québécois welcomed and supported Bill C-29. But at that moment, like all Bloc MPs, my colleague addressed the democratic deficit.

The democratic deficit was a slogan heralding a profound transformation in the way Parliament works. Expectations were created around this deficit, and unfortunately we see that nothing happened, except perhaps that the Liberal government now understands that it is in a minority position and must listen more closely to the opposition majority.

In conclusion, I hope that this positive spirit will carry over to the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness when it makes its decision on Bill C-10, so that the people affected by this important legislation will not be penalized.

[Peter Julian, NDP, Burnaby—New Westminster, BC]

Mr. Speaker, I am pleased to participate in this debate on Bill C-10 on behalf of my colleague, the member for Windsor—Tecumseh.

I want to thank the electors of Burnaby--New Westminster for the confidence they expressed in me on June 28, as well as underline the good work that many organizations in our community do, such as the Nikkei Centre, the Japanese Canadian National Museum and Archives, Queensborough and MacPherson Sikh Temples and Crystal Mall, which is the centre of the Chinese community in my riding.

I would like to speak to Bill C-10, which is a response to the June 2002 report of the justice and human rights standing committee. The report reviewed the mental disorder provisions of the Criminal Code and the committee recommended 19 specific reforms, as well as further consultation and research. Among the changes recommended by the committee were: improving the definition of mental disorder, fitness to stand trial, the repeal of hospitalization orders, and the need for adequate treatment.

The bill attempts to cover the issues of how to deal with accused individuals unfit to stand trial. This means that they are so incapacitated that they cannot be tried, convicted or acquitted.

Provincially appointed review boards are charged with the task of determining how an unfit accused should be supervised. This legislation therefore increases the authority of the review boards. Those boards would be empowered to order psychiatric assessments of the accused, decide whether to require the presence of the accused at a hearing rather than to use detention, and lengthen the time between review hearings when appropriate.

The bill allows victims to read a victim impact statement at a review board hearing and allows for publication bans to protect victims or witnesses.

Bill C-10 would allow for the transfer of a person found not criminally responsible on account of mental disorder if the transfer would promote the recovery or treatment of the accused.

These are all very important measures that we can fully support on principle, with some caveats related to the expanded law enforcement powers and to some extent the increased powers of the review panel, which will have to be scrutinized at committee stage.

Generally, Bill C-10 seems to be a good response to the report of the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness. It deals with complex issues in obscure legalese, and requires a high degree of legal proficiency.

I would like to take this opportunity to emphasize the importance of setting standards for clear and simple language in legislation and legal documents. Should a member of Parliament have to be a lawyer in order to be able to do his or her work and understand a bill? In order to read and understand Bill C-10 properly, one needs a copy of the Criminal Code.

I urge the government to introduce bills that are written in plain and accessible language. Please, do not tell me those who want to participate in the democratic life in this country need to be lawyers. We should not write bills that can be deciphered only by a few hand-picked lawyers who are paid $400 an hour.

I also want to emphasize the absolute necessity that people with a mental disorder be well represented. This brings up the fundamental issue of access to justice.

Section 15 of the Canadian Charter of Rights and Freedoms states:

Every individual is equal before and under the law and has the right to equal protection and benefit of the law without discrimination--

Equal access to justice is one of the fundamental principles of society and a constitutional right of every Canadian. This is simply not a reality for many Canadians. Courts, both civil and criminal, are blind to the financial costs of legal action and, as a result, fail to provide equal and just protection to everyone. The reality is that access to the judicial process is dependent on wealth and this means that those with money reap the rewards while those without are often left behind.

When Bill C-29 was before the House, my colleague and former NDP MP from Dartmouth, Wendy Lill, said:

Imagine that the rights conferred by the Charter of Rights and Freedoms were only available if they were affordable. Imagine if our rights to life, liberty and security were available only if we were sufficiently wealthy to secure them for ourselves. What if the right to have a court proceeding translated into a language that we understand were violated because the government stance is that only those who can afford to hire their own translators can enjoy these rights? What if our right to be fairly represented by counsel amounted to nothing more than our ability or inability to hire the best lawyer we could afford?

Again, even our systems of legal aid are failing to do their part as discrepancies between provinces, inconsistent results and underfunding have placed the entire system in crisis. We know that the Minister of Justice called on the legal community to increase pro bono work and that he is very much supportive of a broader, more democratic access to justice and to legal services.

If all our lawyers were as committed to serving the community, I have little doubt in my mind that voluntary guidelines would be sufficient to entice the legal community to provide significant pro bono legal work for all those who need it, particularly the poor and the mentally or physically challenged.

In the real world, not all lawyers can afford to do so. Justice demands from most lawyers more than they are willing or able to give away. Only a minority would go above and beyond, and only a minority would consistently trade a conventional bottom line for a non-conventional bottom line.

In fact, Edward Greenspan, a well renowned criminal lawyer, once said, and I quote, “A lawyer can't turn away a client just because he's charged with an odious crime any more than a doctor can't refuse to treat a patient just because he suffers from an odious illness”. I would add that a lawyer cannot turn away a client just because he is poor or mentally challenged any more than a doctor cannot refuse to treat a criminal just because he suffers from being a criminal.

We have a system of legal aid that should be precisely available for this purpose. Unfortunately, the system is underfunded and very narrowly focused. The system falls under provincial jurisdiction, which complicates a coast to coast to coast approach and strategy to fix the problem.

We need a system of legal aid in this country that is wide enough to be available to ordinary Canadians. We need a system that is deep enough to deal with the difficult cases and with the long term supervision of people who suffer from mental disorders. In sum, we need a legal aid environment that would make it easier for professionals to be at their best in their humanity, a legal environment where a lawyer does not have to be a hero to bring justice to the poor and the challenged, and tax incentives for pro bono work to service requirements that young lawyers should provide to the community.

We must also recognize that the costs of law school are increasingly unaffordable and we should provide more generous tuition credits to increase the number of law school students. This is also important and would address some of the issues facing post-secondary education. Surely, adequate funding and better integration with appropriate fiscal incentives to represent those with lower incomes would be a good place to start.

We in the NDP caucus support this bill in principle and support its referral to committee for further assessment and improvement. We look forward to continuing our involvement in passing this important piece of legislation.

[Richard Marceau, Bloc, Charlesbourg, QC]

Mr. Speaker, First, I would like to thank my hon. colleague for Provencher for agreeing to change the speaking order, since I must leave the House immediately after I speak. At the risk of disappointing many hon. members, I shall have to keep this speech short. Please forgive me. I can see all those disappointed faces, knowing that I probably will not use the 10 minutes at my disposal; I see the Parliamentary Secretary to the Minister of Justice is one of them.

On March 29, the Minister of Justice introduced Bill C-29, an act to amend the Criminal Code (mental disorder) and to make consequential amendments to other acts. This bill responded to the 19 recommendations made by the Standing Committee on Justice and Human Rights, under its mandate to examine the provisions of the Criminal Code with respect to mental disorders. The committee submitted its report to the House on June 10, 2002. Bill C-29 was sent to committee but there was not enough time to examine it before the end of the 37th Parliament.

On October 8, as the parliamentary secretary has mentioned, the Minister of Justice introduced Bill C-10 in the House, and it is almost entirely identical to Bill C-29 from the previous Parliament.

At this point in the debate I would be remiss if I did not raise the point that the standing committee submitted 19 unanimous recommendations to the government. Of these, 5 were set aside by the government, even though the committee had proposed them unanimously.

We have a Prime Minister who prides himself on wanting to overcome the democratic deficit; a Prime Minister who says he is giving considerable—and increasing—weight to the opinions of MPs; but I must express my disagreement because these recommendations contained in a unanimous—I repeat, unanimous—report were set aside by the government. I think it would have been preferable for the government to adopt all the recommendations made by the committee. It would also have been preferable for it to take into account the opinions of the members, who had heard witnesses and experts, who did the reading, who were briefed, who therefore were at the leading edge of the debate on this issue. It is disappointing to see their opinion set aside.

I warn the justice minister's parliamentary secretary right now, in a friendly way of course, that from the opening minutes and hours of the committee, we will be asking why these recommendations were set aside. We will want to know why these recommendations were not followed by the government so that Bill C-10 reflected as closely as possible the committee's fourteenth report which, I would like to remind the honourable member, was unanimous.

In short, since I can see the clock ticking away, I would simply like to tell the parliamentary secretary that, at this stage in the proceedings, we are in favour of Bill C-10. However, the main goal or thrust of our committee's work will be, on the one hand, to strike a balance between protecting the rights of the mentally disordered and, on the other, safeguarding public order and the general public.

In that context, we will also want to know, as I said a moment ago, why the recommendations were not followed. As far as we are concerned, these recommendations reflected, albeit imperfectly—because perfection does not exist in this world—but still in a reasonable way, the balance that we always seek in the field of public order between protecting the individual rights of Quebeckers and Canadians and protecting society at large.

Therefore, at this stage, we are in favour of referring Bill C-10 back to committee and we will try, through constructive and detailed work, to avoid upsetting the balance we seek.