Bill C-23 (Historical)

An Act to amend the Criminal Code (criminal procedure, language of the accused, sentencing and other amendments)

This enactment amends various provisions of the Criminal Code in relation to criminal procedure, language of the accused, sentencing and other matters.
The amendments respecting criminal procedure provide for, among other things,
(a) the use of a means of telecommunication to forward warrants for the purpose of endorsement;
(b) changes to the process with respect to the challenge of jurors;
(c) a new election for the accused where a preferred indictment has been filed against him or her or where the Supreme Court of Canada orders a new trial;
(d) an appeal of a superior court order with respect to things seized lying with the court of appeal;
(e) summary dismissal by a single judge of the court of appeal when an appeal has erroneously been filed with that court; and
(f) a summary conviction trial with respect to co-accused that can proceed where one of the co-accused does not appear.
The amendments respecting the language of the accused clarify the application of provisions related to that matter.
The amendments respecting sentencing provide for, among other things,
(a) clarifications with respect to the application of impaired driving penalties;
(b) the power to order an offender not to communicate with identified persons while in custody and the creation of an offence for failing to comply with the order;
(c) the power to delay the sentencing proceedings so that an offender can participate in a provincially approved treatment program;
(d) an increase of the maximum fine that can be imposed for a summary conviction offence to $10,000 and a change with respect to the calculation of the period of imprisonment to be imposed in default of payment of a fine;
(e) the suspension of a conditional sentence order or a probation order during an appeal;
(f) in the case of a person serving a youth sentence who receives an adult sentence, clarification that the remaining portion of the youth sentence is converted to an adult sentence; and
(g) the power of a court to order, on application by the Attorney General and after convicting a person of the offence of luring a child by means of a computer system, the forfeiture of things used in relation to that offence.
The enactment amends the description of the offence of conveying information on betting and book-making so that the offence encompasses the conveying of that information by any means and makes related changes to the exemption provided with respect to the use of a pari-mutuel system.
Finally, amendments are also made to reclassify the offence of possession of break and enter instruments into a dual procedure offence.

Criminal Code

[Sukh Dhaliwal, Liberal, Newton—North Delta, BC]

Mr. Speaker, I will be splitting my time with the hon. member for North Vancouver.

It is an honour for me to rise in the House here today to discuss Bill C-35. I cannot understand why my Conservative friends on the other side continue to delay this bill becoming law.

I must point out that the Liberal Party has already gone a long way to putting in place laws to make the jobs of our men and women in uniform easier. I think of legislation like the anti-gangster law.

I would also like to point out that during the 13 years of the previous Liberal administration, we saw crime rates drop by more than 20% in some cases. This bill will only enhance those provisions that the Liberal Party has already provided.

Bill C-35 will make the streets safer by keeping criminals who use guns in prison, instead of out on bail to commit more crimes.

This is a bill I am proud to support and I cannot understand why my Conservative colleagues keep on postponing passage of this legislation.

This bill is designed to change the Criminal Code so that reverse onus will be required if an accused is charged of crimes with a gun. This bill will also be used against those charged with gun trafficking, possession for the purpose of trafficking or gun smuggling.

I would like to remind the House that it was the right hon. member for LaSalle—Émard who brought me into this political arena. In the 2006 election he supported the idea of reverse onus bail hearings for gun related offences. I was proud to support this initiative with him then and I am proud to do so now.

The presumption of innocence and the right not to be denied bail without just cause are rights protected under the Charters of Rights and Freedoms. I firmly believe that this bill is in keeping with the spirit of the charter. It enhances our safety while still respecting our basic rights.

When I talk to people such as Chief Superintendent Fraser MacRae of the Surrey RCMP detachment or Chief Constable Jim Cessford of the Delta police department, I know how important is this legislation. I hear it everywhere from my constituents of Newton—North Delta. These voices from my riding of Newton--North Delta must be heard. It is so important that they be part of the process.

Why is the minority Conservative government not listening? These men and women, the ones on the street keeping us safe every day, are the ones who best understand what is needed to keep our homes, our families and our children safe. We must do all that we can to support them. That is why I am saddened by the cynical partisan games that the government is playing with such important legislation.

The official opposition has tried more than three times in the last six months to speed up many government bills dealing with justice issues. Each time the Conservative Party has shown that they are more interested in politicking than in actually passing their own legislation and making our families safer.

I would remind the House that it was my hon. colleague, the Liberal justice critic, who tabled a motion that proposed the immediate passing of four bills: Bill C-18, Bill C-22, Bill C-23 and Bill C-35, the very bill we are all here still debating today.

If it were not for this cynical government's obstruction, we could have sent all of this legislation to the Senate and put it on the fast track to becoming law. In one swoop we could have passed more than half of the government's entire justice agenda. We could have taken major steps in protecting our families and our communities, but the Conservative House leader raised a point of order to block the Liberal motion and caused more delays in passing serious anti-crime legislation.

Why will the government not take yes for an answer and pass its own legislation for the sake of our safety? The government knows that a majority of MPs in the House of Commons want to pass these bills and the government will just not stop dragging its feet.

The fact that the government is blocking its own legislation proves that it is not serious about crime. It only wants to use these bills as an election issue, not as a way to make our neighbours and communities safer. The Canadian people deserve better. They deserve a government that will not play politics with the Criminal Code.

The late Pierre Trudeau said, “just watch me”. Well, the Canadian people are watching. The people of the riding of Newton—North Delta are watching. The people are watching the government play politics with the safety of our children and families. Canadians and the good people of my riding of Newton—North Delta deserve better. They deserve a government and a leader who will put the safety of our families ahead of politics.

When I look at the justice platform put forward by the hon. Leader of the Opposition, I have hope that the government might also finally get one. The Liberal Party has proposed a new plan, one that would have a major impact on the way we approach safety and justice in our country. It is not enough to simply talk tough on crime and then do nothing as the minority Conservative government has done so far.

We must deal with every aspect of fighting crime on our streets. We must work to prevent crime. We must work to make it easier for our police to catch criminals. When criminals are caught we must work to see them convicted through competent and quick administration. When they are convicted we must work to rehabilitate those criminals, so that when they get out of prison they do not commit more crimes.

I would encourage the government and all members of the Conservative Party to support the legislation and also support the Liberal idea to fast track those bills that I mentioned earlier. I encourage them to support our men and women in uniform who keep our streets safer and to support the official opposition when it has the guts to do what must be done to see this legislation pass to improve our safety and justice system.

We want no more delays, no more partisan politics and tactics, and no more games. Let us get the job done. Canadians are counting on us.

Comments by Government House Leader

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

I will try a third time, Mr. Speaker, again with respect to House business and further to your ruling yesterday, I wonder if you would seek unanimous consent for the following motion: That notwithstanding any Standing Order or usual practice, Bill C-23, An Act to amend the Criminal Code (criminal procedure, language of the accused, sentencing and other amendments), be deemed to have been reported without amendment by the Standing Committee on Justice and Human Rights, concurred in at the report stage, and read a third time and passed.

Criminal Code

[Wayne Easter, Liberal, Malpeque, PE]

Mr. Speaker, I am pleased to speak to Bill C-26, an act to amend the Criminal Code (criminal interest rate).

The bill was reported back to the House from committee on December 13. It very seldom happens that a bill is reported back without amendments. That shows what can happen when there is strong cooperation between the parties. Actually this is one of six bills the official opposition has called upon the government to work with all parties to pass as soon as possible.

We believe with just a little more cooperation, especially from the government, that in addition to Bill C-26, the following bills could be reported back to the House: Bill C-9, which would restrict the use of conditional sentences; Bill C-18, which would strengthen the DNA data bank; Bill C-19, which would amend the Criminal Code on street racing; Bill C-23, which would amend the Criminal Code and criminal procedure in languages of the accused and sentencing, in other words, update Canada's Criminal Code; and Bill C-22, which would amend the Criminal Code with respect to age of protection, with the importance of protecting children. We believe with a little more cooperation from the government, we could in fact be getting those six bills approved in the House.

In summary, Bill C-26 amends the Criminal Code of Canada to exempt payday lenders who operate in provinces and territories having measures in place to protect borrowers from the application of section 347 of the Criminal Code of Canada, and require jurisdictions that regulate the industry to place limits on the cost to consumers of payday borrowing.

To a great extent a lot of work was done on this bill by previous ministers of industry and justice. A lot of work has gone on with the provinces and territories to get the kind of collaboration needed to put forward this bill in the House of Commons. I congratulate all the folks, including members of the government, who were involved in those discussions to get us where we are at today.

There is certainly a need to ensure consumers that usury interest rates are not allowed in this country. There is no question that there is a lot of authority in the Criminal Code of Canada under section 347 to lay criminal charges for usurious interest rates. Section 347 makes it a criminal offence to charge more than 60% per annum.

As we all know, some payday loan companies have charged far in excess of that rate. In fact, we have heard of outrageous interest charges, when compounded and fees are added, in excess of 1,200% per annum, yet no charges under section 347 to payday loan companies have been made.

Yes, the concern is there, but the payday loan business is a little more complicated jurisdictionally, and I would say on an individual need basis, more than meets the eye. Jurisdictionally payday loan operations are considered to be commercial businesses. They are not banks, although I think many people believe they are. As commercial businesses, to a great extent they fall under provincial jurisdiction.

My colleague, the MP for Scarborough—Rouge River, explained it. I want to quote from his remarks in the House because he gave best explanation on this point:

We are going to keep a Criminal Code provision, but we are going to allow an exemption for a lawful business that lends money using this payday loan mechanism. The exemption will be based on the premise that a province or a territory is regulating the commercial operation.

He went on to say:

Placing this amendment with section 347, will allow the provinces to assume their proper jurisdiction in the regulation of the commercial affairs of their citizens. However, at the same time, we maintain the criminal prohibition with the 60% per annum cap where there is no provincial regulation. We are assuming that a province will provide a form of regulation that will essentially keep the same level of protection the consumers have had up to now.

It is important to mention that because it explains the jurisdictional problem and the difference between the commercialization as a business.

Therefore, the bill does cover off the jurisdictional question under clause 2 by the person being licensed by the province to enter into the agreement, and second, the province has been designated by the governor in council or cabinet under the proposed new section 347.1.3.

On an individual need basis, it is obvious from the demand for transactions, estimated to be $1.3 billion or more, and in fact the parliamentary secretary said it is as high as $2 billion now, and also the increase of payday loan companies that are estimated to be over 1,300. It is obvious from these shocking figures that individual Canadians have an urgent need for short term cash for whatever reason.

Yes, I recognize the amounts are in the low hundreds of dollars, but the cost, as others have said before me, are very high.

Mr. Jenkin with the Department of Industry, who was a witness before committee, indicated:

It's a form of short-term lending through which the consumer typically borrows several hundred dollars for 10 days to two weeks. The borrowing costs are very high, as you probably know. They are usually in the range of, for example, $40 to $75 for a $300 loan for two weeks or less.

I must emphasize that while I support the bill as a way to improve the situation for people who are in need of immediate cash, I still am worried about the impact of the financial strain on individuals. There is no question in my mind that the individuals who are basically forced to use these services are the ones who can least afford to pay these high fees. Maybe they need the dollars to provide food, buy groceries for the family. Maybe they need the dollars for a medical bill or maybe they even need the dollars to pay the minimum payment on a high interest bearing credit card.

Whatever the reason, there is clearly a problem out there that needs to be addressed beyond this bill. I certainly would advise the government and others that we really need to be doing as a country, both at the provincial and federal level, some research into the social or economic reason why people think they are forced to go to these services for those kinds of money. They are the people who can least afford it and I believe that needs to be looks into and addressed.

The bottom line is that we are in favour of this bill. We do believe it is a step in the right direction However, there are other underlying causes that we need to recognize are out there in a social and economic sense and issues that really affect people in their daily lives that forces them to use these services. That is the worrisome point.

The bill is good but I believe the House and the government need to look at the underlying causes of the need to use these services more so.

Marriage

[Bill Graham, Liberal, Toronto Centre, ON]

Mr. Speaker, like the hon. House leader, I had the opportunity and privilege of participating in the debate on the question of the adoption of the law permitting marriage of same sex couples last year.

I say the privilege because I was proud to participate in that debate. It was a serious debate, as the hon. House leader has suggested. While it was an emotional debate, members treated one another with respect, even those who disagreed with one another profoundly on religious grounds or in other ways. In many ways, the debate in the House last time was Parliament at its best.

I will always remember, for example, how the hon. member for Laurier—Sainte-Marie put it, as repeated today by the hon. member for Hochelaga: “—the religion of some should not become the law for others”.

However, as I listened to the House leader today, I respectfully suggest to the House leader that this motion is different. This is an underhanded political manoeuvre. Is the House leader proud of the headline of the Globe and Mail editorial this morning? “[Prime Minister]'s shoddy motion” is what the Globe and Mail editorial called what we are being asked to debate today in this House.

The government does not even want a real debate. It is not giving enough time. It has introduced the idea of civil unions, which as it knows is exclusively a provincial matter. It is a smokescreen. It says it is not trying to re-establish the very inequality that was struck down by our courts.

As the member for Wascana has pointed out, this is purely a procedural motion. It is a debate about whether ultimately we should have a debate. If the government wanted to take this matter seriously, it would have introduced legislation, but it knows the composition of this House and it knows such legislation would never be passed by this House.

Instead, it resorted to a manoeuvre that takes us nowhere. It is not designed to take us anywhere. It is designed to divide the House, to divide the members of the House, and divide the Canadian population on an issue that has been settled. It is designed to divide our nation on an issue that a majority of Canadians wish to move on from.

Everyone in the House knows that the courts have upheld this across the country, including the Supreme Court of Canada, eight provinces and territories. I will not name them, but I respectfully disagree with the hon. House leader. It is not true that the Supreme Court of Canada did not rule on this matter. The Supreme Court of Canada specifically said in its judgment that it would not, in any way, pronounce on the matter in a way that would overrule the findings of the lower courts, and those findings were conclusively in favour of overturning the prohibition against same sex marriage, as everybody knows.

I praise the government for saying it will not use the notwithstanding clause. I say to the hon. House leader that I hope that is an undertaking that the government is making, whether it is in opposition or in the future at any time, that it would never introduce such a bill by using this notwithstanding clause. However, without the notwithstanding clause, as everyone has pointed out, this same sex debate we are having today is, in the words of the columnists and the editorial writers such as Jeffrey Simpson of The Globe and Mail, “a meaningless charade”.

However, that said, let us take up the challenge. Let us remind ourselves of why we voted as we did the last time. Let us remind ourselves of our charter. Let us remind ourselves of the debates that we had in this House when we first introduced changes to the Criminal Code to protect gay and lesbian couples from being attacked on our streets, when we introduced the human rights code changes which ensured there would not be discrimination, and when we went on to ensure that people could get their pension rights and be treated equally if they had the same status as heterosexual couples that had civil unions.

What we saw throughout the country and through this House was a movement. We saw an evolving sense of our human rights and it came from our constituents as well, not just gay and lesbian constituents but from straight constituents, from all races and all religions. They came to us and came to a conclusion that society was enriched ultimately by treating all citizens equally.

I remember years ago learning that a certain newspaper in Toronto, which I would not describe as a left-wing newspaper, had a policy that it would pay equal amounts to people who had same sex unions because it wanted to attract the best possible employees.

This is not just about equality. This is about creating a society which will be a richer society when everybody can participate in it and feel equal in it.

Yesterday, the Prime Minister avoided answering the question of the hon. member for Newmarket—Aurora, who wanted to know whether he thought that our society or the institution of marriage had suffered from the legislation permitting same sex marriage. It is the same question just asked by our colleague in the NDP.

I would like to suggest that the Prime Minister and his hon. members, who do not seem to understand the realities of the modern world in which we live, should go and take part in the gay pride parade in my city of Toronto, or elsewhere in the country.

To their great surprise, they would find grandmothers and children of all ethnic groups and representatives of multicultural organizations from all over participating enthusiastically. Why do they do this? They are taking part in something that celebrates our humanity, tolerance, respect for other people and ability to understand one another.

Some members of this House think that same sex marriage spells the end of society as we know it, that it shakes society to its core. I say to these hon. members that they should ask the Canadians who take their children to gay pride parades and deliberately put them in contact with this modern reality what they think of this celebration of our common humanity.

I have been a parliamentarian for many years and have followed all the debates about recognizing the rights of gays and lesbians, including amendments to the Criminal Code, to the Canadian Human Rights Act, and to Bill C-23, which gave equal rights to common-law spouses and entitled them to pensions. Some participants in these debates painted the most apocalyptic scenarios for our society, our children and the institution of marriage.

Far removed from all dogma, I believe personally that we should follow this debate with humanity and compassion, animated by a spirit of openness, inclusion and respect and with tremendous confidence in humanity’s ability to make changes to society out of deep respect for our differences. We should ponder the lessons of history. The same fears, the same dire scenarios were conjured up when interracial marriages were allowed in the United States or the Divorce Act was passed in Canada not so very long ago. We all remember that.

Our country’s history clearly shows that in the face of profound sociological change, Parliament has often crystallized the irreversible changes already seen in society, but has never jumped the gun. Parliament has always been able to adapt to deep-seated new movements in our society.

I will therefore in all humility as a parliamentarian and legislator be guided by the wisdom, tolerance and confidence expressed by our forefathers and foremothers who said yes to social progress and no to all the apocalyptic scenarios conjured up. I can only humble encourage all my parliamentary colleagues to do the same and recognize not only this reality but also the fact that Canadians accept it.

Times have changed and we must move on. The House has moved on and the country has moved on. Under the present law, religious institutions are protected while all others are included.

We join countries like the Netherlands, Spain, South Africa and others. Let us think of South Africa and imagine the example this would send to a country like South Africa if we were to reverse ourselves on the fundamental principle of human rights. Why would this country, a beacon to others around the world on human rights, reverse itself and go backward in time? What kind of an example would that be to South Africa and dozens of other countries that are looking to us as an example?

Let us solemnly undertake in the House today that we have debated this issue and that we will move on. I respectfully ask the Prime Minister, his party and his colleagues in his caucus to promise this House and this country that this will be the last time, that this is not just a strategy for another election issue, that they will not inflict this agony on gay and lesbian Canadians, and that they will tell them that this will end and that our social cohesion will no longer be roiled by threats to the droits acquis once and for all.

A week ago Monday, this House voted on a motion about our country and we all spoke movingly about our country. We voted in that debate and at the end of that debate we voted to be inclusive.

I remember the hon. member for Westmount—Ville-Marie speaking with great emotion about how her identities as a Quebecker and a Canadian fit perfectly together.

Many others have spoken in the same vein saying that their identity as Quebeckers and their identity as Canadians are perfectly in harmony. We should ask ourselves whether after tomorrow's vote the gay and lesbian communities will be able to say the same? Will they say that their personal identity and their national identity are compatible and even complementary? Will they be proud to be both and proud to play a role in our society? If they feel anything less than that and less than their fellow citizens, I believe we will have failed our constituents, our country and future generations of Canadians who are asking us to continue to create this country as a place where we live with one another in respect and tolerance and show a light to the rest of the world which will enable them and us to move on to other issues of importance and move away from the traditional, I say hatreds, the traditional fears of the past. Let us move on from the past and let us move to the future in a way that is Canadian and in a way that is respectful to our charter and of our fellow citizens.

Criminal Code

[Stephen Owen, Liberal, Vancouver Quadra, BC]

Mr. Speaker, I will begin today by talking a bit about the theory of criminal justice and how we get tough on crime, which is the slogan often used by those across the way.

We cannot get tough on crime without being smart on crime and that means not just descending into slogans, such as “getting tough on crime”, “war on crime” and “three strikes you're out”. We know where that rhetoric comes from and we know that it is based on false analysis. It is based on ideology and sloganism, not on criminological research, social research or demographics which all gives serious concern to knee-jerk, superficial stoking of the fears in society about a situation that may not exist. That is done for purposes that are ideological and polemical and they carry a real danger of being self-fulfilling.

I would like to take a few minutes to speak about how being tough on crime means being smart on crime first.

Let us just take the 12 bills dealing with criminal justice that are before this House and the one that is before the other place. The official opposition has offered this week to cooperate and fast track eight out of the eleven of those bills, and I will speak to the other two in a moment, but that is in no way doing anything but making this place work with sensible dialogue and debate over how to, without holding up any of these bills, ensure they are not more dangerous than what we are to believe they are to protect us against.

We have offered to fast track Bill C-9, the conditional sentencing bill. It has had serious debate and an appropriate amendment was moved by opposition parties so it can now go ahead. We will give it all the speed it needs.

We will fast track Bill C-18, the DNA identification act; Bill C-19, street racing; Bill C-23, criminal procedure improvements; and Bill C-26, payday loans. I would pause to say that five out of the six bills that I have just mentioned were actually initiated under the previous Liberal government. They will go forward with our support and with sensible amendments where necessary. We will fast track two other bills.

We opposed the judicial salaries bill because we opposed the suggestion by the government that it disregard the Judicial Compensation and Benefits Commission which recommended appropriate increases for judges' salaries over the last four year period. While we opposed that, we allowed it to pass on division so there would be no slowing up of that process.

The 13th bill is Bill S-3, the military sex offender act, which is now before the other place. We will be supporting that bill and are willing to fast track it in every way we can.

In the context of discussing the dangerous offender legislation, it is important to underline the cooperation that is going on in the House to identify what is important, to carry on work that was done by the previous government and to get some of these things moved ahead.

However, Bill C-27 is of a different order. The dangerous offender legislation before us has some major flaws that I will speak about but I would first say that we need a reality check. Let us take a reality check first on the criminal conviction statistics in Canada which have been steadily coming down over the last 10 to 15 years. That is what the research tells us. The demographics themselves in society are leading through analysis to that decline in the crime rate. While we may raise the fears of the public to justify simplistic solutions through sloganeering and superficial claims to put fear in the hearts of Canadians, the crime rate comes down.

Let us take another reality check on the situation in the U.S. where these slogans come from and much of this legislation seems to be patterned after. The United States has the highest crime rates and incarceration rates. It also has the most dangerous communities and the most expensive criminal justice system.

If we are to follow any model in the world when we amend our criminal justice statutes, we certainly do not want to follow the so-called war on crime in the United States.

Let me pause to mention that the state of California spends more on criminal justice and corrections than it spends on education. That should be very edifying to all of us.

Let me give another example about the folly of pretending that just by putting people in jail on very restrictive terms without any adjustment for the context of a particular case can be more dangerous for society. Most convicted people, dangerous or not, will get out. We have the Bernardos and some of the most horrid criminals in our country's history who will be behind bars, blessedly, forever, but most criminals will get out.

Let us think of those people who go into a prison situation, which members opposite would like to see everyone go into. It is a bit of an irony to consider that prison life, if that is what we can call it, prison for life, is the place in society which should be the most protected but is in fact the place where one is most likely to be assaulted, raped, infected and injected, and these people will come out.

Therefore, we need to take particular care for the correctional services, the proper services within them and who we put behind bars and for how long.

Let me speak about the fact that 25% of the prison population in this country is made up of aboriginal people. This is a stunning statistic of despair. Can this be the result of a fair criminal justice system or is this a result of despair in aboriginal communities? Is it part of the despair of our prevention system and our criminal justice system of preventative crime? Is it a matter of racism in society? What is happening?

These are the underpinning questions that we must be asking ourselves in the House as we respond to the reality of the criminal justice system. This is 1% of the population and 25% of the prison population.

Let us ensure that when people do come out of prison, if they are going to be spending time there, that they have been rehabilitated and they are safe to society because the vast majority will come out.

We will not ensure that the context of the situation is properly taken into account in peculiar circumstances unless police officers, prosecutors, judges, correctional officers and parole officers have the discretion to identify where the dangers are and where someone may have a better response to a criminal justice sanction than simply putting someone in jail for an indefinite period.

Turning to Bill C-27, the dangerous offender legislation, the member opposite has mentioned that there is dangerous offender legislation on the books now and it is operating. It operates as a companion with long term offender legislation which can kick in. Prosecutors have the discretion to bring forward at sentencing applications before a judge for a long term offender or a dangerous offender designation. That works. It has been covered by the Supreme Court of Canada in the Lyons and Johnson cases in 1997 and 2002. It has been found to be constitutionally appropriate. I would suggest that it is working because it allows for all the proper discretions to be exercised.

The problem with what is being suggested in Bill C-27, and it has been referred to by numerous members of the House, is the reverse onus provision at sentencing after a third conviction of a certain type of very serious crime.

We have heard some people say that this offends the presumption of innocence, which is an historical criminal law principle in our legal system. However, the trouble is not with the presumption of innocence, which is subsection 11(d) of the charter. The question is about the reverse onus of the burden. This is not a conviction matter. It is not a presumption of innocence because the person has already been convicted for the third time.

What we are talking about is whether fundamental justice, in reversing the onus on such an extraordinary punishment, can meet the tests under section 7 of the charter for fundamental justice. There is strong authority that this simply cannot be done. This does not meet the tests of fundamental justice. It involves, for instance, the convicted person proving a negative into the future. Yes, it is on the balance of probabilities and, yes, as the member opposite said, there is judicial discretion to determine whether that onus is met or not, but there is still a reverse onus and, in many cases, it is an impossible burden to attempt to prove a negative into the future.

It is also a problem because it offends section 7 as being against the principles of fundamental justice and it is a problem under section 1 as to whether this is a justifiable limit on the rights under the charter. Is it a substantive need? Is it a rational connection? Is there minimal impairment? I would say that under all those cases this reverse onus does not meet the test. This is highly constitutionally suspect. Why, when we have a provision that is working well, would we want to throw ourselves into very likely years of constitutional charter litigation when we have charter compliant provisions now for dangerous and long term offenders?

We also have a problem that this will not be enforceable. This is ultra vires of the federal government to tell the provincial governments, which are responsible for the administration of criminal justice, who they should prosecute and what sentences they should ask for. That simply cannot be supported in our constitutional division of powers and, therefore, it is inappropriate for the government to put this forward.

There are also dangerous unintended consequences that could come to the fore here. We have long delays in our criminal justice system today. A report in the paper last week showed that in the province of Ontario 100,000 charges have gone beyond the nine months before they actually go to trial. This is bouncing very perilously close up against the Supreme Court of Canada Askov decision where all members will remember with regret that 30,000 criminal cases were dismissed because it took too long for people to get to trial.

If people are facing this so-called simplistic, superficial three strikes and they are out law, which has been so disastrously unsuccessful and dangerous in the United States, they will insist on going to trial more often. There will be less guilty pleas which will cause further delays in the courts and perhaps more cases will be thrown out because of charter violations.

The one side of it is that there will be more trials, longer delays and more costs to the prison system. I have not even begun to talk about the hundreds of millions of dollars in capital costs that will be required to build the prisons that will hold these long term offenders.

Costs will be going up, delays will be longer and cases will be thrown out for charter violations because of delay. The other dynamic that may happen and where prosecutors, with long dockets and not wanting to have further delays in trials, may charge people with lesser offences than would otherwise justify a conviction for a more serious case that may give them a longer prison term, or the convicted person may plea bargain to a lesser offence.

Both of those dynamics are more likely to put dangerous people on the streets and put in danger the men and women the member opposite was just speaking about. We have to be very careful when we tinker with these laws, especially if we are doing it superficially and against the evidence of criminologists and social scientists as to what is effective and what is not.

Let us turn for a moment to what being tough on crime by being smart on crime really means. It means a national crime prevention strategy, such as the one the previous government put into place across this country over a period of 13 years, funded in a very targeted way, to help kids have things to do after school. If I may indulge myself in a short phrase, it is about shooting hoops, not drugs. There are sports programs across this country in the evening and even far into the night where kids who otherwise would have been getting in trouble are involved in healthy activity.

We have to watch for issues of poverty and cultural exclusion.

We have to look at the issue of legal aid, which is in underfunded disrepair across this country, thus involving people in perhaps building up criminal records when they should have been having trials and pleading not guilty. They are pleading guilty because they cannot defend themselves in the courts without assistance.

We have to look at issues of homelessness. We have to look at issues of mental illness. The Kirby-Keon Senate report was an extraordinary statement of sound thinking about how to deal with those with mental illnesses, who unfortunately fall into the ranks of the homeless as well as the ranks of the criminal justice system, which is the worst place for them to be. We have to rethink this and meet our social contract around the concept of deinstitutionalization, whereby governments emptied the mental hospitals but then did not provide services in the community to support people.

We have to look at drug courts. They are operating in Toronto and Vancouver and in numerous American states. That is one example of where the American criminal justice system has actually been a stunning success at diverting people out of the criminal system if they will go into detox and treatment.

We have to look at issues of harm reduction. Drugs, addiction and substance abuse are great parts of the despair that leads people into the criminal justice system. Harm reduction, of course, involves needle exchanges and safe injection sites, which the government has failed to guarantee would be extended in Vancouver, when it has been an example for literally the world to consider the effectiveness of harm reduction in that situation, to help motivate people into detox.

We need shelters for them. We need transitional housing. We need skills training. We need affordable housing. We need jobs. In fact, the social enterprise initiatives of the last Liberal government, which were ready to go across this country, certainly in my province of British Columbia, were cancelled by the current government in its last budget. Those are the things that can assist people to not fall into crime and into despair, which leads them to become dangerous for other members of society.

What are we going to do instead? We are going to dismantle the gun registry. It is amazing that any thought could be given to that at this stage after the tragedy at Dawson College in Montreal.

We have a Prime Minister who will not go to an international AIDS conference in Toronto. We have a Prime Minister who did not go to a world conference on harm reduction in Vancouver last April.

We are simply looking in the wrong direction. We have to be tough on crime, I agree with all members opposite, but we are going to be tough on crime by being smart on crime and not by being simply superficial and using slogans.

[Sue Barnes, Liberal, London West, ON]

Mr. Speaker, I am pleased to rise today to speak to Bill C-22. I am also very aware that all the justice critics need to be in committee for clause by clause of another justice bill right after this, so I am going to truncate my remarks to help get all the right people in the room who need to be there shortly after question period.

I will say at the outset that our party will support the bill. In doing so, we are following up on work that has gone on over a number of years. The Speech from the Throne of October 5, 2004 committed the government to cracking down on child pornography. Similarly, in the previous Speech from the Throne, the former Liberal government committed to reinstating former Bill C-20, An Act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act.

The bill was reinstated on February 12, 2004 as Bill C-12. It was awaiting second reading in the Senate at the time of that Parliament's dissolution for a federal election. In June 2004 the then prime minister reiterated support for reintroduction of the package as the first legislative item in the new Parliament. I know that the former minister of justice, the hon. member for Mount Royal, introduced in the former Parliament Bill C-2, An Act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act. It received third reading on June 9, 2005, royal assent on July 20, 2005, and came into force in its entirety less than a year ago, on January 2, 2006. Bill C-2, then, is built on reforms previously proposed in the former Bill C-12 and proposed reforms in five key areas.

I might reiterate, too, that former Bill C-12, by a procedural motion, a hoist motion, from the then opposition Conservative Party, was prevented from going forward a couple of years earlier.

Be that as it may, when I hear the Minister of Justice incorrectly saying that nothing was done, I have to put on the record that we did strengthen prohibitions against child pornography.

We broadened the definition of child pornography to include audio formats as well as written material “that has, as its predominant characteristic, the description of prohibited sexual activity” with children “where that description is provided for a sexual purpose“. We prohibited advertising child pornography, increasing the maximum sentences and making a number of offences have more bite.

We wanted to protect young persons against sexual exploitation. One of the things that I like in Bill C-22 is that the government has not disposed of that section that was so important, the section that talked about the exploitation of children. It had prohibited sexual activity with young persons between 14 and 18. Under Bill C-2, a court would be directed to “infer that a relationship is exploitative of the young person based on its nature and circumstances, including the age of the young person, any difference of age, the evolution of the relationship, and the degree of control or influence exercised over the young person”.

Consistent with the existing criminal law treatment of sexual assault, that bill focused on the offending conduct of the accused rather than just on the young person's consent to that conduct. That was always the concern, that it was not just an age number, because the age of 14 has been in the Criminal Code and utilized since the late 1800s. It was the “exploitative” nature, and I am pleased that the bill keeps this, because that helps in our being able to come forward with our consent today.

We did increase the penalties for offences against children.

We facilitated testimony not only for child victims and witnesses under 18 years but for other vulnerable victims and witnesses. This is procedural, to help stop re-victimization in the court process.

We created a new voyeurism offence. Today we have those cameras that take pictures; that is why we needed this.

In 2002 we also created the offence of Internet luring under section 172.1 of the Criminal Code. That prohibited the use of a computer system, including the Internet, to communicate with a young person for the purpose of committing a sexual assault against that person. It can and is being successfully charged, irrespective of whether a sexual assault actually took place. The fact of the offending conduct of trying to lure a child via a computer system is what we were getting at and it is there.

Also, just a few weeks back, a private member's bill on increasing sentences passed in the House.

Today's Bill C-22 is an improvement over former private members' bills, no matter how good the intention was. The fact is that now this bill has the five year close in age exception and that will go a long way, I think, in helping us to accept this bill and give our consent to it.

In fact, in our Liberal justice plan announced last week, this was one of the bills that we said would be put forward and given consent by our party, along with the other bills of conditional sentencing and imprisonment, as amended in committee, such as: Bill C-9; Bill C-18, an act to amend certain Acts in relation to DNA identification; Bill C-19, an act to amend the Criminal Code (street racing) and to make a consequential amendment to the Corrections and Conditional Release Act; Bill C-23, an act to amend the Criminal Code (criminal procedure, language of the accused, sentencing and other amendments); and Bill C-26, an act to amend the Criminal Code (criminal interest rate), which was debated in the House last week under the topic of payday loans.

We on this side will add Bill C-22 to that list of bills. There are about 11 government justice bills. This one makes six that the Liberals are prepared to move forward in the Liberal justice plan, although we do not think that these bills are universally perfect. But we could find flaws with all pieces of legislation in the House. There are sections in this bill to do with unconstitutional areas of the Criminal Code, which we could have fixed. The justice minister has chosen not to do that, but at this stage I think the protection of children should be our utmost priority.

Listening in the chamber today was one of the good police officers who has to work in this area. He was kind enough to give some Liberal members a briefing. Unfortunately, his colleague from the federal police services was not allowed to do that, for reasons unknown.

On this side of the House, we as the official opposition are prepared to support this bill. I am prepared now to move on and give my time so that critics from the other parties can all be present in the justice committee for voting measures later this afternoon on another piece of legislation. There is unequivocal support here for Bill C-22.

Business of the House

[Ralph Goodale, Liberal, Wascana, SK]

Mr. Speaker, in light of what the government House leader said just a few moments ago, I wonder if you could see if there is unanimous consent in the House at this moment for the following motion: That Bill C-9 be deemed to have been concurred in at report stage, read a third time and passed; that Bills C-18, C-19 and C-23 be deemed to have been reported from committee, without amendments, concurred in at the report stage, read a third time and passed; and that Bills,C-22 and C-26 be deemed to have been read a second time, referred to and reported from committee without amendments, concurred in at report stage, read a third time and passed.

[Rob Nicholson, Conservative, Leader of the Government in the House of Commons and Minister for Democratic Reform]

Mr. Speaker, today we will continue to debate an opposition motion.

Tomorrow, we will complete debate on the amendment to Bill C-24, the softwood lumber agreement. Under a special order adopted Tuesday, there is an opportunity to sit into the weekend if needed to give members, particularly members of the New Democratic Party, the debating time they requested on such an important bill.

Next week, the House will be adjourned to allow members to return to their ridings.

When the House resumes on October 16, we will debate Bill C-23, the Criminal Code; Bill S-2, hazardous materials; and Bill C-6, aeronautics.

On Tuesday I will call Bill C-24 again. Thursday will be an allotted day.

We will introduce the motion that the hon. member requested in due course.

At the same time, I would like to wish everyone a happy Thanksgiving weekend.

[Rob Nicholson, Conservative, Leader of the Government in the House of Commons and Minister for Democratic Reform]

Mr. Speaker, it sounds like the hon. gentleman would like us to table everything we are going to do for the whole fall, right up to Christmas. Usually, the Thursday question is just for the week ahead, but it seems to have expanded.

Today, for sure, we will continue with the debate on the opposition motion of his party.

Tomorrow, we hope to complete Bill C-24, the softwood lumber agreement, which will followed by Bill S-2, hazardous materials, and Bill C-6, the Aeronautics Act.

Tomorrow, I intend to ask the House to approve the appointment of Graham Fraser as Commissioner of Official Languages for Canada for a term of seven years.

Depending on progress on the softwood lumber bill, it is my intention to call three justice bills next week as follows: Bill C-19, street racing; Bill C-18, DNA; and Bill C-23, Criminal Code efficiency and effectiveness.

Next Thursday will be an allotted day.

The answers to the hon. member's other questions he will know in good time.

Finally, there have been consultations and there is an agreement to have a take note debate on the situation in Sudan. Therefore, I think you would find consent for the following motion. I move:

That a take note debate on the subject of the Situation in Sudan take place, pursuant to Standing Order 53.1, on Tuesday, October 3.