Bill C-31 (Historical)

An Act to amend the Criminal Code, the Corruption of Foreign Public Officials Act and the Identification of Criminals Act and to make a consequential amendment to another Act

The enactment amends the Criminal Code, the Corruption of Foreign Public Officials Act and the Identification of Criminals Act and makes a consequential amendment to the Canada Evidence Act.
Among other things, the amendments
(a) provide greater access to the telewarrant process for peace officers and public officers;
(b) reform the expert evidence regime to give parties more time to prepare and respond to expert evidence;
(c) allow the provinces to authorize programs or establish criteria governing the use of agents by defendants who are individuals;
(d) authorize the fingerprinting of, photographing of or application of other identification processes to, persons who are in lawful custody for specified offences but who have not yet been charged;
(e) expand the jurisdiction of Canadian courts to include bribery offences committed by Canadians outside Canada;
(f) expand the list of permitted sports under the prize fighting provisions;
(g) make minor corrections to the pari-mutuel betting provisions, delete unnecessary provisions and update the calculation of pool payouts;
(h) update the provisions on interceptions of private communications in exceptional circumstances;
(i) reclassify six non-violent offences as hybrid offences;
(j) create an offence of leaving the jurisdiction in contravention of an undertaking or recognizance; and
(k) delete provisions of the Criminal Code that are no longer valid, correct or clarify wording in various provisions and make minor updates to others.

Criminal Code

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Madam Speaker, I rise on a point of order. This is supposed to be a debate on Bill C-36. In fact, it is specific to an amendment to take Bill C-36 out of third reading and send it back to committee. With all due respect to the member for Winnipeg Centre, I do not have a clue what Afghan detainees have to do with the bill under consideration or the amendment of the hon. member for Windsor—Tecumseh.

[The Acting Speaker, NDP, Denise Savoie]

The hon. member is making some arguments. I will ask him to come to the point that he is making with respect to the amendment.

[Pat Martin, NDP, Winnipeg Centre, MB]

Absolutely, Madam Speaker. I believe I can demonstrate that my comments are in fact germane and pertinent to the motion to refer.

I was speaking of the rights of committees to access information they need to do their job properly, which is exactly the point my colleague from Windsor—Tecumseh is making. I ask for the support of other members of Parliament not on the merits of Bill C-36 but on the merits that committee members need the facts in order to make determinations and carry out due diligence to the work that is put in front of them. I was giving an example of where we in committee were denied that systematically.

My point was that members had better think twice before they try to do away with section 745 of the Criminal Code, the faint hope clause, because the punishment for deliberately destroying documents or deliberately denying the existence of them under the Access to Information Act is right up there in the Criminal Code with high crimes and misdemeanours, including treason. It is on par with treason because it sabotages and undermines democracy, and takes away from the very spirit of the public's right to know. We cannot do our jobs without that freedom of information as committee members.

That is the worrisome pattern that I am trying to illustrate. The deliberate withholding of information that was directly relevant to the determination of Bill C-36 undermined the rights of my colleagues on the justice committee in their ability to do their job properly.

Some committee members who spoke I believe were generous in their portrayal of what happened, saying that the minister simply forgot to pass the information that was requested on to committee member. I do not think that was any accident.

I think perhaps the minister is on fairly weak ground, that his arguments do not have a great deal of substance for the need to change the faint hope clause. I believe the actual experience, the empirical evidence that was asked for and that he withheld, would have done great damage to the arguments of members on the government side as to why they thought they needed to make these changes in the criminal justice system at this point in time.

Again, I do not speak to the merits of Bill C-36. That is not why I asked for an opportunity to speak today. I am speaking, as a vice-chair of a parliamentary committee, on behalf of the rights of committee members to function. When committee members ask for certain information and that information is made available to them by witnesses, the minister does not have any right to intercept that information and have it sit for days, weeks or months on his desk while the committee members struggle with only half of the information.

I am not a lawyer, but if we were in a court situation, that is one of the fundamental underpinnings of our legal system: full disclosure of the facts. The prayer we say every day when Parliament opens is that we have the ability to make good law. We cannot make good law without access to the facts.

If one side is withholding pertinent information for political purposes, that sabotages and undermines the democratic process. It is an affront to democracy and to Parliament. The collective privileges of the members of Parliament in that committee have surely been breached at the very least.

Madam Speaker, how much time do I have left? None.

[The Acting Speaker, NDP, Denise Savoie]

Order. Perhaps the hon. member can continue during questions and comments.

The hon. member for Renfrew—Nipissing—Pembroke.

[Cheryl Gallant, Conservative, Renfrew—Nipissing—Pembroke, ON]

Madam Speaker, I wish only to comment on the remarks of the member from the separatist-socialist-Liberal coalition and his exaggerated indignation.

Since we have had two consecutive minority governments, we are in a situation where the total number of members on a committee for the opposition outnumbers the number of government MPs. That is why we are seeing one kangaroo court or blown-up inquiry after another. Opposition members have been hijacking the very serious business of committees, even blocking the testimony of witnesses or the witnesses themselves from coming to committee, whose points of view differ from that of the separatist-socialist-Liberal coalition.

[Pat Martin, NDP, Winnipeg Centre, MB]

Madam Speaker, I was not really listening to my colleague from Renfrew—Nipissing—Pembroke. She started with an insult and I did not think it was worth listening to whatever else she had to say. My colleague from Windsor—Tecumseh said that the member for Renfrew—Nipissing—Pembroke used to belong to the Conservative Reform Alliance party. It had to change the name because it said CRAP.

I do not want to use my time to insult her. I do not think that she should use her time to insult me.

We are talking about a very serious issue here, which is the right of committee members to do their job without interference and without being sabotaged by the ruling party and the advantage it enjoys in rationing out tidbits of information that we all have a right to.

[Wayne Easter, Liberal, Malpeque, PE]

Madam Speaker, I agree with the member. We are dealing with an extremely serious issue here. It really goes to the core of the denial of proper information for committees and members of the House of Commons, so that they can make good decisions. I congratulate the member on his remarks because I think he outlined a number of areas where the government is in fact denying information to committee members.

I know the member did not hear the question from the member from the governing party, but her question related to the fact that opposition members are the majority on committees now. She tried to imply that, as a result of that, committees have become kangaroo courts and that therefore the committee members were denying witnesses who wanted to come before committee. I believe it is the defence committee that she was talking about.

The reality is, and I will ask the member to confirm or deny, that Canadians decided what the makeup of the House of Commons would be. They decided that they would not grant the party opposite a majority. We are doing our job as opposition members as a result.

A member of the government has suggested that we are denying a witness. We are not denying a witness. We are saying that if we are going to make proper decisions as a committee, the government should provide the documentation, the emails and the briefing notes to ministers. The committee needs to have access to the information, so that we can question that witness properly. Otherwise, how are we to know that the government has not told the individual to come to committee to give a misleading story or some such thing?

We need the evidence first. I would like the member to comment on that because I think it goes to the heart of what the government is all about: messaging, implying certain things, fear and intimidation. The ten percenters it sends into my riding and across this country are nothing short of hate mail. That is why they are. They are not providing information. I would like the member to comment on that.

[Pat Martin, NDP, Winnipeg Centre, MB]

Madam Speaker, from all of the very valid comments my colleague from Prince Edward Island makes, the operative word and the thread throughout his comments is access to information and freedom of information. We have a right to know these things. In fact, as committee members, we have a duty and obligation to have all the facts before we make a determination.

However, there has been a systematic withholding of information. I am glad that my colleague from Renfrew—Nipissing—Pembroke raised this. The latest example of this was at the defence committee, where we would all like to hear from the former ambassador, Mr. Mulroney, but not without the prerequisite information before the committee first. It is up to the committee to determine what facts it needs and when, and who it would like to hear from and when.

I am sure that it would like to hear from Mr. Mulroney, but it would like to have the pertinent documents first. It has requested them and once again, there is a rationing out of facts and information by the government instead of a full disclosure and a full, voluntary freedom of information, which is what was supposed to be the cornerstone of the government's administration. Instead, it is obsessed with secrecy and cover-up.

[Brian Masse, NDP, Windsor West, ON]

Madam Speaker, I appreciate the member for Winnipeg Centre's discussion on this. It is an important component, not just about the issue but about the procedure that is taking place here.

I am fortunate to sit on the industry committee where there seems to be more of a working order in place. It is actually chaired well and is respected by members, for the most part. We have our differences, but it functions very well.

I have had the chance as well, though, to sit in substitution for the member for Windsor—Tecumseh at the justice committee in the last session during the government's filibustering of its own committee and basically declaring an end to the committee meeting.

What I would like the member to talk a bit about is the importance of the committees with regard to bringing in witnesses in order to hear the testimony that is necessary to make decisions and the cost of that. It costs thousands of dollars to bring in people from all over the country to get this testimony, which is very important, because committees cannot often travel across the country and it is even more far more expensive to do that. However, it is critical to get a pan-Canada opinion on matters.

When we see this type of undermining by the minister, it really takes away from all the evidence that is presented, because many of the groups that come before committee do so in succession. They look and they listen to the other submissions from people across the different spectrums, whether they are in favour or against a particular issue at committee.

I would like the member to talk about that because there is an incredible cost that taxpayers have to pay. Shenanigans like this from the Conservative Party waste taxpayers' dollars because they require the re-working of things and also they affect, almost like a chain down the order, the other witnesses who are there with a sincere interest to actually promote different issues.

[Pat Martin, NDP, Winnipeg Centre, MB]

Madam Speaker, the point is that a bill or a piece of legislation should be able to succeed or fail on its own merits. If the government was proud of or confident in the merits of its bill, it should be able to survive robust debate and debate that is guided by all the facts and all the information on both sides. That is how we test the mettle of a piece of legislation. If it can survive robust debate from both sides, if it can survive the consultation process and the due diligence of a functional working committee, then it has been tested well and it deserves to come back to the House, and be reported to the House for third reading.

However, to undermine and to deny committee members their ability to do their job in a systematic way speaks to an insecurity of the government. I think the government knows full well that a lot of what it is putting forward is just fluff. It is pure political pablum, to buy votes not to in any way move forward the political life of Canada.

I began my speech, I believe, in a fairly generous tone, by saying that parliamentary committees are the backbone of our democracy and it is a pleasure when they are working well. I am glad that my colleague on the industry committee can say that he is satisfied that his committee functions the way it is meant to.

We used to be able to tell school teachers who brought their classes to Parliament, and were embarrassed by question period, that at least at the committees was where the real work of the people was done. I can no longer say that with any confidence because the committee process has been undermined, diminished and sabotaged by political interference. We are seeing another example of it today.

That is why we should support the amendment of my colleague from Windsor—Tecumseh to refer Bill C-36 back to the justice committee, so that the committee can review the information that the minister has withheld from it, as the committee may want to amend Bill C-36 to make it better.

[Jim Maloway, NDP, Elmwood—Transcona, MB]

Madam Speaker, I wish to split my time with the member for Halifax.

The amendment moved by the member for Windsor—Tecumseh is a very important one, particularly since the information was available and was obtained. In fact, the member for Windsor—Tecumseh was told that the information was actually mailed to his office and the offices of the other critics just in the last couple of days, but that proved not to be correct.

In terms of the length of the murder sentences in other countries, a 1999 international comparison of average time served in custody by an offender given a life sentence for first degree murder showed the average time served in Canada was 28.4 years. That is greater than all the countries that were surveyed, including the United States.

In fact, in New Zealand, the first country on the list, the time served was 11 years. In Scotland it was 11.2 years. In Sweden it was 12 years. In Belgium it was 12.7 years. In Australia it was 14.8 years. In the United States, life sentence with parole was 18.5 years. We see that Canada already has a higher figure at 28.4 years. The countries with the shortest and longest incarceration periods for people serving murder sentences provide points of comparison with Canada.

In New Zealand, prisoners become eligible for release after seven years if sentenced prior to August 1, 1987, or after ten years of sentence after that date, unless the minimum term was imposed by the court. The most recent published statistics covering the period from July 1, 2002 to June 30, 2003 shows that the average number of years served in custody by this class of inmates was 12.1 years.

In the United States, while every state provides for life sentences, there is a broad range of severity and implementation in the statutes. I mentioned earlier today that in the state of Michigan, the governor, who was in favour of the death penalty, changed his mind after numerous cases of wrongful convictions were found. Time goes fast but I think that was in the last seven or eight years.

In the six states of Illinois, Iowa, Louisiana, Maine, Pennsylvania and South Dakota, and in the federal system, all life sentences are imposed without the possibility of parole. Only Alaska provides the possibility of parole for all life sentences. The remaining 43 states have laws that permit sentencing most defendants to life with or without parole.

In the case of life sentences with the possibility of parole, the time that must be served prior to eligibility for release varies greatly from under 10 years in Utah and California to 40 to 50 years in Colorado and Kansas. The median length of time served prior to parole eligibility nationally is in the range of 25 years. However, eligibility does not mean release and we have dealt with that before.

Bill C-36 consists of seven clauses. This section contains discussion of the most important of the clauses that I am dealing with right now. Clause 2 is an addition of subsection 745.01 to the Criminal Code. We are dealing with the different clauses in the bill which we have dealt with in committee.

The amendment basically asks that the bill go back to committee because there was information that was available and which should have been available before the members made their votes on the different amendments known at the committee. They did not have the benefit of the available information at that time. The amendment is in order. It is time to go back and take a look at some of the information.

There were different pieces of information that the member for Windsor—Tecumseh wanted that would have in some way affected his assessment of the bill. He wanted to know the reoffending rate and no specifics were given on that. He wanted information on the ages of the offenders. He wanted information on how often the faint hope clause was used and how often it was granted on the first application. He wanted to know at what age the offenders went into prison and at what age they got out of prison.

The member for Windsor—Tecumseh wanted several other pieces of information that we subsequently found out were available but were not available when members made the decision on the case.

A number of other pieces of information can be dealt with regarding this bill. The bill will not be retroactive. The faint hope regime will continue to apply to those who are currently serving or awaiting sentencing for murder, but it will not be available to those who commit offences once the bill is in force.

For those who are able to make an application for a judicial review, clause 3 imposes a number of additional restrictions. New applications must be made within 90 days of the day on which the offender has served 15 years of his or her sentence or within 90 days of the coming into force of the bill. Repeat applications must be made within 90 days of the fifth anniversary of the last application or the date set by the judge or jury. If no such application is made, or if an applicant is unsuccessful, five years must pass before a fresh application can be made, an increased length of time from the current two year period. The government's intention is to make it more difficult for the faint hope clause to occur for people who would currently qualify for it. The offender will have to apply within 90 days of that date.

Under the new regime, unsuccessful applicants for judicial review will be able to apply twice, once when they become eligible after serving 15 years of his or her sentence and once more at the 20 year mark. Under the current regime, unsuccessful applicants may apply a total of five times, when they have been incarcerated for 15, 17, 19, 21 and 23 years, as long as the further applications are permitted by a judge or a jury.

Clauses 4 and 5 deal with the words “substantial likelihood” to the judge's decision and changes to time periods.

Section 745.61 of the Criminal Code sets out the procedure to be followed by a chief justice or a designated judge of the superior court in determining whether an applicant for judicial review of his or her sentence has shown, on the balance of probabilities, that there is a reasonable prospect that the application will succeed.

Clause 4 of Bill C-36 changes the words “reasonable prospect of success” to “substantial likelihood of success”. Once again, this is a tightening up of the application and the wording. This change in language sets a more stringent requirement for proving the possible success of the application. The words “reasonable prospect” are replaced with “substantial likelihood” in at least four subsections.

Clause 4 changes the amount of time applicants for judicial review must wait before making a second application should they not succeed the first time around. Currently, if the judge determines there is not a reasonable prospect that the application will succeed, he or she may set a time not earlier than two years at or after which another application may be made, or decide that no other such application may be made. This will be amended to extend the period to five years before which another application may be made. Current subsection 745.61(4) states that if the judge sets no time, the applicant may make another application no earlier than two years after the date of the denied application. This default period will also be extended to five years by the provisions of Bill C-36.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Madam Speaker, I serve on the justice committee and I think the flavour of the testimony that will not come out in the chamber here as we debate this motion is the testimony of the victims' families who talked to us about the prospect of repetitive requirements, if not legal, then moral requirements to attend, to present and relive the tragic events of their loss.

One aspect of the bill changes the timeframe from every two years to every five years. My friend even said in his remarks that in the 15th year, the 17th year, the 19th year, the 21st year, the 23rd year perhaps, until forever, these victims could relive the horror. Let us face it. Through this process if a person is denied the faint hope at the 15th year, the 17th year, the 19th year and the 21st year, it is very unlikely that person will achieve something in the 23rd year.

Does the member not at least agree, as we did at the committee, that we should take into account the horror for victims in reliving this every two years and that the five year rule is not out of line?

[Jim Maloway, NDP, Elmwood—Transcona, MB]

Madam Speaker, the treatment of victims is extremely important for all of us to consider. I have mentioned many, many times that in my home province of Manitoba, 20 years ago in the case of a break-in to a property, the victim could not get much information from the police, could not get much information about the trial date for the accused, could not find out the disposition of the case. The victim was basically left hung out to dry with no counselling services.

Over the years through successive governments, Manitoba brought in a system of victims' rights so that the victim will now know what is the disposition of the case, where the criminal is, whether the criminal is in prison or out of prison. The victim will get counselling to overcome the psychological damage that was caused by the break-in, the hold-up or whatever the criminal act happened to be.

We are very aware that whatever system we develop, whatever mechanism we have for dealing with the justice system, we have to bend over backwards to be sensitive to the victims and their families. We have to make certain that we take all precautions possible to deal with that issue and make sure that people are not dealt with in a negative manner. Certainly, that has been the case in the past and we want to take steps to improve that in the future.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Madam Speaker, I have heard the member speak twice today about Bill C-36. Clearly he is against the bill and is in favour of the faint hope clause. I am curious as to the relevance of this so-called statistical information that successive members of the NDP have alleged has breached the privilege of one of its members. What relevance does that information have, since it is abundantly clear that all members of the NDP caucus will be voting against Bill C-36 because they like the faint hope clause?

[Jim Maloway, NDP, Elmwood—Transcona, MB]

Madam Speaker, the reason the member for Windsor—Tecumseh moved the amendment is very straightforward. Today he gave the chronology of events. He explained that Mr. Head appeared before the committee on November 4 and was not prepared. He was asked a series of questions. I have outlined what the questions were, but I can give them again if the member would like.

This information should have been available to the members of the committee from the very beginning. The fact that the information was supposed to be obtained and given at a later date and was given after the fact is definitely an affront to the committee system, an affront to Parliament and an affront to democracy itself.