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(k) delete provisions of the Criminal Code that are no longer valid, correct or clarify wording in various provisions and make minor updates to others.

The House resumed from November 24 consideration of the motion that Bill C-31, 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 be read the second time and referred to a committee.

Business of the House

[Jay Hill, Conservative, Leader of the Government in the House of Commons]

Mr. Speaker, I thank my hon. colleague, the House leader for the official opposition, for his question.

This Thursday I will contain myself mainly to the traditional question which is the business ahead for the next week for the House of Commons.

This week we are focusing yet again on the government's justice bills. Yesterday we completed the final reading of Bill C-36, the serious time for serious crime bill. We expect to send Bill C-58, the child protection bill, to committee later today. I had hoped that debate might have collapsed before question period and that bill would have already been on its way to committee. Hopefully that will happen this afternoon.

We will then be debating at second reading Bill C-31, 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. We are hopeful debate will conclude on this bill as well today.

Other bills scheduled for debate this week are Bill C-54, An Act to amend the Criminal Code and to make consequential amendments to the National Defence Act, and Bill C-55, An Act to amend the Criminal Code, which is the response to the Supreme Court of Canada decision in R. v. Shoker bill.

Next week we will be calling for debate: Bill C-27, anti-spam, at third reading; Bill C-44, the Canada Post remailers bill, at second reading; Bill C-57, the Canada-Jordan free trade bill, at second reading; Bill C-56, fairness for the self-employed bill, at report stage and third reading; and of course, as always, I will give consideration to any bill that is reported back from committee.

My hon. colleague asked about allotted days. Next Tuesday, it would be my intention to have as the next allotted day.

Criminal Code

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Mr. Speaker, we should tell my colleagues that they cannot ask any questions, because I will not finish my speech before time runs out, not that I could not handle any of their tough questions, of course.

I rise on Bill C-31. There is general agreement among all political parties that the provisions of this bill are long past being needed. A number of the amendments will bring us into the 21st century with regard to processes that our police forces are required to go through in laying or prosecuting charges. There is general support for this bill. We will be supporting it at second reading. It will go to the justice committee along with lots of other bills and we will get to it eventually.

I want to say this, because I always attack the government on this. In the four years that the government has been in place, this is realistically the first bill that has been prepared in a proper way to deal with the problems we have with the Criminal Code. By that, I mean that it is the first bill of any consequence that one could call an omnibus criminal law bill. There have been a couple of other ones that have involved two or three sections of the Criminal Code, but this is the first one that is an omnibus bill.

I am emphasizing this point because if the government had done this in a number of other cases and had brought a whole bunch of individual bills together into one, we could have expedited a number of the amendments that we have in fact passed, oftentimes with all-party support over the last four years, and we would probably be at least a couple of years ahead of where we are right now.

I want to praise the government for finally listening to me in this regard. I want to encourage it to follow my advice more extensively in the future so that we will have other bills, because there are a number of other provisions in the Criminal Code that need amending and, in particular, modernizing so that our police officers, prosecutors and judges can use the Criminal Code more effectively than they can now. There are all sorts of conflicts in the Criminal Code as it stands right now, as well as those sections of the Criminal Code that are just clearly out of date. I urge the government to take my advice more regularly as it has taken it on this particular bill.

With regard to the contents of the bill, members from both the Liberals and the Bloc and I have serious concerns about the provisions that deal with the issue of the taking of fingerprints before a person is charged. The taking of fingerprints and this point of not being allowed to take fingerprints unless our police are going to charge an accused person goes way back. It has been in the Criminal Code for more than half a century, since shortly after we had the technology of fingerprinting. It goes way back into the last century.

Again, as we heard from my colleague from the Bloc, the need to have a charge laid before fingerprints are taken is in keeping with that significant presumption of innocence that underlies a great deal of our criminal justice system. This is really cutting away at that principle of presumption of innocence. I in no way want to cast aspersions on our police forces, but we know from time to time that we have individual police officers in particular who abuse their authority and power.

Unfortunately, if this amendment were to go through, it would allow for the potential for abuse of that kind by a police officer. It is wide open to being used as a fishing expedition. Our courts in the past have said quite clearly that it is offensive to practice within our criminal justice system and, more specifically, to the Charter of Rights and Freedoms.

I have great concerns as to whether the clause as presented to the House in this regard would survive a charter challenge. I do not think it would. I believe it is clearly a breach of the charter and the only way that could be overcome is, under article 1, by demonstrating that it is necessary in a free and just society to infringe those fundamental rights in the charter.

Again, as I said in one of my questions earlier, I have spoken with police officers and chiefs of police, and the only explanation I have had is that this is convenient for them. Quite frankly, even when I explore that, I do not understand the explanations I get as to how it is convenient and how it is going to make their jobs easier. I do not see how they are going to meet the charter test, but, of course, that will be explored much more extensively when this bill goes to committee.

We have heard a fair amount today as well that one of the highlights of the bill involves the amendments to the prizefighting section of the code, section 83, and that this bill will modernize that. There are some concerns about it. Having listened to members of the other parties, I would say it sounds as though we have all been lobbied on this issue, but I know that the province of Ontario has some serious reservations about expanding the definition. I am not sure they are justified, I have to say, because I have looked at the section, but it is something that we will need to explore.

What has not been raised here is the parimutuel amendments, the betting amendments in the code. I will address those more extensively and perhaps go back to the prizefighting issue as well either tomorrow or the next day when this bill comes before the House again.

[Ed Fast, Conservative, Abbotsford, BC]

Mr. Speaker, the member does good work on the justice committee and, more often than not, we disagree on the bills that are before us, but he is a hard-working member of the committee and he did raise the issue of prizefighting and the fact that Bill C-31 would modernize how we deal with prizefighting in Canada.

As members know, that portion of the Criminal Code has not been revised for decades. The member knows that from his own province of Quebec heralds a world champion of mixed martial arts, Georges St-Pierre. The member also referred to the fact that the Olympics include judo and karate. He forgot wrestling but that is also one of the elements of mixed martial arts.

The member was not able to clearly state whether he supported changes that would allow mixed martial arts to take place in Canada, so I would ask him if he could clarify that and take a position on it here in the House.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

Mr. Speaker, I rise here to speak to a bill for the second time today, but first of all, I must say I will probably be less critical of Bill C-31 than I was, and I will continue to be, of Bill C-36, if that bill ever comes back to the House. That being said, this is an interesting bill, and the Bloc Québécois will support it so it can be referred to the Standing Committee on Justice and Human Rights for a more thorough study.

I hear some Conservative Party members applauding. I invite them to save their applause for five or ten minutes from now. I am not sure if they will still want to applaud, but for now, I cannot help but notice their applause, and I think it is interesting.

I do not know why, but the Conservatives tend to insert what we call a poison pill into an interesting bill. We were reading the bill, which has about 30 pages and 40 clauses, and everything was going well until we got to clause 39, which would amend the Identification of Criminals Act. I will come back to this. Our criminal law includes a very important principle, which the Supreme Court has reiterated on a number of occasions, and that is the presumption of innocence. A person is presumed innocent until found guilty by a jury or a judge who knows the law, on the basis of evidence introduced before his peers. The Supreme Court has said this time and time again. I would remind the members that we do not believe that subsection 2(1) of the Identification of Criminals Act can be amended, because that would go against the presumption of innocence.

I will take this argument further. The main downside to this bill is one small paragraph on the last page of the bill that seeks to amend paragraph 2(1)(a) and that reads as follows:

(a) any person who is in lawful custody after being arrested for...

That means that this paragraph would apply to everyone who is arrested for any reason. People could be fingerprinted and photographed from now on. It is clear that, if the government maintains its position and insists on amending this section, we will fight to the finish to vote against this bill and against this clause, and it is clear that we will try to have this clause removed from the bill in committee. We hope to do so with the support of the Liberals and my NDP colleague.

Why remove this clause? Because it would open the door to all sorts of abuses. My colleague from Edmonton—St. Albert can say what he likes, but you have to know the territory, as we say, you have to have argued cases and know criminal records to know that the police have a tendency to go overboard. Often, they are willing to keep a record on anyone for anything. Obviously, this is not always true, and it is not true of all police officers. But there are safeguards in place, and one of them says that a person cannot be fingerprinted until he or she is charged with or convicted of an offence. That means that at present, an individual who is convicted or who is charged—because the person has to be charged—can be photographed and fingerprinted.

In general, this is how it works. A person receives a summons requiring them to appear in court. They must plead guilty or not guilty and then they may be fingerprinted and photographed.

This process must not change and we will do everything in our power to ensure that it does not change because it is the fundamental right of an individual to be presumed innocent until found guilty. This presumption of innocence is extremely important in our criminal law.

It is unfortunate because it overshadows good intentions. I come from an area 600 km north of Ottawa that is regularly visited by the itinerant court. I also argued before this court when I was a lawyer. The itinerant court travels to Inuit and Cree villages on the shores of James Bay, Hudson Bay and Ungava Bay as well as in regions such as ours.

I will return to the main point of Bill C-31: telewarrants. We believe that the process must be modernized. Police forces are quite right to ask that telewarrants be easier to obtain and that they be made available more quickly.

For the benefit of our audience, telewarrants are search warrants or other types of warrants. The first example that comes to mind is this. Someone is stopped after a motor vehicle accident. The police approach the vehicle and smell alcohol. The person is in his car and unable to give his consent because he is unconscious or too drunk. In any event, he must be taken to hospital. The police accompany him to hospital and obtain a telewarrant over the phone. A justice of the peace, located in an office somewhere in Quebec, will authorize the taking of a blood sample from the individual to determine his blood alcohol level. We agree with the legislator that this telewarrant process should be retained and made more accessible.

The police are right. At present, in 2009, if they suspect that a criminal act has been or is about to be committed, and if they must quickly obtain a search warrant, they have to go before a judge, have him sign a document and then proceed with the search.

We think that the bill is a good idea, because it would modernize the Criminal Code. Even though I am a criminal lawyer, I think that we need to make it easier for police officers to do their jobs and gather evidence. One way of doing this is through telewarrants.

We feel that improving access to telewarrants is a good thing. Police officers must have the possibility of obtaining telewarrants, whether or not they are written or used.

This bill deals with many other things, such as fleeing to another province, and the amendment in response to the Supreme Court ruling in R. v. Six Accused Persons, which amends section 184 of the Criminal Code. There were a number of amendments to be made to the Criminal Code.

There are many details. This bill is long and very technical, but it is interesting. However, there are two main points I want to talk about. The first is representation by an agent, or non-lawyer.

I have a hard time accepting that an agent could represent a client in court, when the client is being charged with a summary offence. The Bloc Québécois has a hard time agreeing with this proposal for a number of reasons.

Representation by a lawyer is extremely important, especially in criminal law. When it comes to appearing, we could probably make some concessions. But I have some serious problems with having an agent question and cross-examine witnesses for and on behalf of the defendant.

I have the same concerns as the Quebec bar, which has provided us with information on this subject, saying:

The Barreau du Québec is concerned that this proposal, as written, causes confusion about the meaning of “agent”, and could lead to lawsuits against individuals for illegally practising the profession.

I am also very worried about this proposal. In Quebec, lots of people have acted as lawyers and have represented individuals, such as claimants before Quebec's occupational health and safety commission. The same thing has happened at the Canada Employment Insurance Commission. People with no legal skills whatsoever have represented others before the board of referees because, they said, they were friends of the claimants. If that same system were to apply to the Criminal Code, we would start having serious problems.

I am very surprised that the government would propose such a thing at the provinces' request. I can confirm that the Quebec bar does not support this proposal. I would be very surprised to hear that the Government of Quebec requested this kind of third-party representation. I believe that the committee will have to pay special attention to the issue of representation by lawyers when it comes time to study this bill.

The other point I want to raise has to do with the amendment to section 2 of the Identification of Criminals Act. I want to discuss this because I think it is important not to create this option. Above all, we must not give the police unrestricted power to take a person's fingerprints and photograph, because there is no telling where that information might end up. Such records, known in our jargon as anthropometric records, could make their way to the Canadian border, to customs, or elsewhere.

If that happened, an individual who has never been charged with anything might be prevented from leaving Canada. The police might go so far as to arrest people for dangerous driving or a highway safety code violation, and tell them to go to the police station for fingerprinting and photographing. The police might even have photographic and fingerprinting equipment with them at the scene of the arrest. I think this goes very, very far. We have to create a process for destroying the fingerprints and photos of people who are not charged with anything and will never be charged, people against whom no complaint or charge will be filed.

At present, not only do we have an individual's fingerprints and photograph—the anthropometric record also included that information—but we know that genetic records can be kept on people who have given a drop of blood, saliva or a single hair for the purposes of DNA identification. We must not forget that.

However, section 10 of the DNA Identification Act contains a provision for the destruction of genetic material.

We think this clause needs to be amended to include the destruction of photos and anthropometric records if no charges are laid within a given timeframe.

One needs to have practised criminal law to understand that it is very rare for clients to come back to us when no charges are laid to ask that their fingerprints and photos be destroyed, even when they have been lawfully taken.

When someone is acquitted of the charges laid against him, his fingerprints and photos should be destroyed automatically, but that is not the case at this time. That is not what happens. Needless to say, this certainly is not more likely to happen if we allow the Identification of Criminals Act to be amended.

We believe that the title of the legislation says it all. It is called the Identification of Criminals Act. So why should someone who has not yet been declared a criminal be forced to submit his photos and fingerprints? In our opinion, this makes no sense, and we find this extremely prejudicial for someone who is arrested.

We think this bill is important. It is an interesting bill and I will close by talking about fighting. I listened to my colleague from Moncton—Riverview—Dieppe and also to my colleague from Windsor. They asked a very important question. There is prizefighting and now throughout the United States there is this type of extreme fighting where violence is involved, of course, but also bets and so forth.

However, we have to be careful because there is very well organized fighting. We know about boxing, but in terms of the Olympic movement, judo and karate have now been introduced. These are extremely interesting sports that are gaining in popularity in Canada.

Judo and karate events are organized under the supervision of national and international agencies. International agencies including the International Olympic Committee, the International Judo Federation, and the World Karate Federation have asked us to ensure that the Criminal Code is amended. I will give an example related to this type of fighting. Canada cannot host the world cup of karate or judo because under the Criminal Code, such fighting is illegal.

We think it is important that this be amended in the Criminal Code. That is what a number of provinces and Quebec are asking for. Judo-Québec, the Fédération québécoise de karaté, the National Karate Association of Canada and Judo Canada, following representations by the International Olympic Committee, which would like to hold major competitions in these two sports, cannot take part.

I see that my time is almost up, but I will close by saying that this is an interesting bill that we will have to address in the Standing Committee on Justice and Human Rights. There are two points, and I have mentioned them, but I think it is important that we respond to the requests and modernize the Criminal Code

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

Mr. Speaker, in brief, no. When I arrived here in 2006, we used to insist on departmental briefings. Some bills are pretty short. This is a pretty large bill. I can only take my friend the chair across the way as speaking a bit for the government, suggesting there might be a legislative committee, which is a bit like putting the cart before the horse.

We should have had a briefing. I hope we will before we get to this. Bill C-31 is not on our work plan before Christmas. The hon. member's usual sage advice will be taken into consideration when we meet.

[Ed Fast, Conservative, Abbotsford, BC]

Mr. Speaker, I look forward to debate at committee if in fact the bill does get to justice committee. Maybe a separate committee will be established to look at this because many different issues are addressed in the bill.

I appreciated the member's general support of the intent of the legislation. I believe the process at committee will be helpful in discerning whether some of the fingerprinting initiatives that we hope to move forward are what Canada needs.

My question for my colleague is on the last point he raised, and that has to do with looking at the whole issue of prize fighting. The provisions in the Criminal Code are hopelessly out of date and he has as much as admitted that.

Has he had a meeting with representatives of the UFC, which represents the new type of martial arts fighting? Has he had a chance to look at its proposals for legislative reform, which it hopes the committee will look at when we deal with Bill C-31? Does he approve of the proposals that the UFC has brought forward in terms of revising the definition of prize fighting?

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

Mr. Speaker, Bill C-31 is a very interesting bill.

I am pleased to be here today to say a few words about the challenges related to justice.

As hon. members know, I am a member of the Standing Committee on Justice and Human Rights. It was a great pleasure for me to join that committee following my first election in 2006.

In the riding of Moncton—Riverview—Dieppe, many concerns have been expressed about the victims of crime. Sometimes the law works, but other times, it does not.

It is in the interest of the entire country and the general public that I want to say a few words about Bill C-31.

I speak to people in general about this bill and about the system of justice in general, because it does not matter what riding one is from, people have concerns. Whether it is about victims of crime, whether it is about crime rates, or whether it is about the safety of their community in general, they look to the justice system for explanations.

I have been here since January 2006. I have never known government; I have never known what it is like to be on the government side. I have never been in the government lobby to even know what it looks like. The promised land, I have not seen.

I do know, however, what the new Conservative government in 2006 did with respect to justice issues and it did not lessen the anxiety. As a team, the Conservative justice group did not lessen the anxiety of the general public In Canada. It did not make Canadians feel safer. In fact what it did, which really has not stopped, with a series of nightly television station visits, it has put the public into a state of anxiety beyond anything that ever existed before.

I know this is not a controversial bill. I am saying that with respect to a fairly non-controversial bill, nine-tenths of which I think I could support. Imagine what I would say with some of the legislation that was clearly designed for the five o'clock drive-by photo op and had very little to do with fundamental change to our criminal law that would give everybody in the House and the people they represent a higher sense of security.

There is one truth in all of these justice issues that is so self-evident it needs not be said. Every member in this House wants his or her community and all Canadians to feel safe. Every member of this House wants an increase in the perception and reality of public safety.

Mr. Speaker, what would you do if you were in charge of the criminal laws of Canada? Most people would expect that you would listen to law enforcement. Most people would expect that you would talk to the attorneys general and premiers of the provinces and territories. Of course you would talk to the people and you would talk to committees and all that sort of thing.

Police forces across the country have been asking for various things, but at the top of their list, they have been asking for more police officers. It really has not been delivered by the government.

Attorneys general across this country have been asking for modernization of the Criminal Code in general, and specifically with the tools of investigation for crimes across the country.

The aspect of Bill C-31 which is wonderful is the modernization of the telewarrant aspect. It is a great thing, but if I look at the big clock of years, I have been here three years and ten months, and it was evident three years and ten months ago that attorneys general were asking for that modernization, and here we are almost four years later.

According to the words in the government's lead-off speech, the member for Edmonton—St. Albert mentioned that the government is enacting recommendations in part from a conference of territorial and provincial attorneys general with the Minister of Justice of Canada in 2008. We are still moving very slowly on what are very important amendments to the Criminal Code.

I remember very well just this spring that Wally Oppal, the attorney general of British Columbia, made the plea for much more modernization of the Criminal Code to give those in law enforcement the tools they need.

I opened my debate on this bill by saying that much of this we can support. Much of it has been much needed. Why did it not come sooner? People in Canada are wondering why.

The government prefers to go to an evening television station to talk about a law that it may introduce instead of getting to the boardrooms of the attorneys general across this country and putting into effect simple modernization of the criminal law. Why not sooner for the modernization of telewarrants?

As I say, there are some very good points in this bill and there are a great deal of items that are housekeeping in nature.

I am going to give a brief overview of some of the highlights of the bill. I am also going to spend some of my time floating some very serious questions about the aspects of fingerprinting and about the aspects of the enforcement of warrants in extraterritorial jurisdictions.

I am also going to highlight some new areas in which people not so much in law enforcement but in the tourist industry and in the municipalities across the country are looking for modernization. Those are the definition of prize fighting and parimutuels.

I was the mayor of a city. I know how important it is on the one hand to secure a community, keep it safe, keep the feeling of safety with respect to police and the laws, but also with respect to tourists and civic activity issues.

It is interesting to see that this bill has a number of items that can be seen as housekeeping, that can be seen as good for the economy, that can be seen as modernizing language. Then, almost as is done in the United States, there is a multi-clause bill and hidden in it is a big truck.

The truck is the issue of fingerprinting anyone who has been arrested and disguising it as somehow being a convenience to the person who has been arrested. Never mind being a good citizen, the person will be fingerprinted and photographed. Those records will stay in the database forever. This is a means of making sure that the good citizen is not inconvenienced in the evening. The good citizen may go home and enjoy the rest of his or her life being part of a public record. Obviously, I am talking about the fingerprinting aspect of the bill.

It seems passing strange to me because we have just had a fairly rigorous preliminary debate with respect to the elimination of the long gun registry.

Many of the people in my riding who were not fans of registering guns I do not think would be fans of having an extension of the government's arm into aspects of fingerprinting and photographing people who have been arrested for an offence and subsequently acquitted, let go or not charged.

It would seem to me that the same people that many of the Conservatives on the other side call ordinary good folk in general would believe in is the concept that one is innocent until proven guilty, that big brother should not in an Orwellian sense keep records forever of people who have never been charged with anything. That strikes me as something that Conservatives cannot believe in.

We are going to test it at committee. We are going to see what exact allegations, crimes or the actual offences are that would allow the police to do this. This is what committees are for. Contrary to some of the discussion in Parliament today about the justice committee, the justice committee works very well. I think the committee will dig into this. Perhaps we will schedule some offences. Maybe we will say that it is important to do this in terms of someone who might be a flight risk, someone who might escape the confines of the country. Maybe that is a good idea, I do not know.

However, I have seen nothing in the legislative summary, the bill itself and I was certainly not reassured by the words of the member for Edmonton—St. Albert that it will not apply to every offence, that in every case where someone is arrested and before the person is charged there will be a photograph and a set of fingerprints taken of the person.

It strikes me that if there is not an explanation as to the seriousness of those types of offences or the extenuating circumstances, then this is something that we as a party cannot support.

There may be an argument given by the government on this and we are yet to hear from it on this in full, that we should move to a system that every citizen in Canada, every visitor to Canada, every person here on a visa should submit records of their fingerprints and a photograph for the easy identification by government officials of who they are, where they have been and what they are doing. I cannot see this as something that Conservative members would really jump up and embrace. I would like to see them go home to their constituencies and say that the government is going to start fingerprinting and photographing everyone just so the government knows where everyone is. I cannot see it, but we will see in committee.

I wonder why in this large canvass of Bill C-31 it has been decided to insert this Trojan horse of fingerprints for all. Perhaps “fingerprints are us” could be the justice department's new motto, its internal slogan.

On fingerprinting we certainly have had some objections already. It is not just me who would suggest that there is some concern.

There are concerns. Clayton Ruby, a member of the Ontario Bar Association and someone who is well known in Toronto, said in an article, and I quote:

Providing fingerprints is self-incrimination and the Constitution protects us from this. The line that is drawn is when you are charged. And to allow police to compel you to incriminate yourself before that moment is open to abuse.

On a website, as reported recently in The Province newspaper, it was said:

The proposed amendment requires anyone who has their fingerprints and pictures taken to apply to have them destroyed. It does not require the police to comply with the request, nor do they have to explain why they have declined.

So, once you're on record, it's basically permanent. Those who fall back on the pathetic excuse of, “well, the cops wouldn't have arrested you if you didn't do something wrong,” wake up.

That is not an esteemed member of the bar, but it is a person out there who has seized the sense in perhaps slowing down the process of the Conservative aim to have us all fingerprinted and photographed.

There is another element to a person having his or her fingerprints and photograph taken upon arrest. There is the aspect of retention. My friend from Edmonton—St. Albert again, when the question was put to him directly, could not give us a comforting answer that those records would be released or expunged in the event that there were no charges. What he did was cite courts of appeal cases that said courts are allowed by law to keep those records. They have no obligation to give them back. It is really not a question of once they have them; the question is, why did they get them in the first place? We have to give this a very thorough examination at committee.

Enough on fingerprints. There is one other disturbing element that I will raise now, but as I say, I am generally in favour of the legislation. This element has to do with the aspect of people under warrant for arrest who have been accused of a crime. They are charged in New Brunswick and they are under warrant for arrest in New Brunswick for not having attended at a court date in New Brunswick. Let us say they go to British Columbia. Perhaps economic reasons propel them to go there. Perhaps they are under some mistaken belief; maybe they had a lawyer who did not inform them properly, but they are under a warrant. They show up in British Columbia. This new piece of legislation will not only ensure that people in large urban centres will be sent back to face what they are accused of in their home province, which is all fair and just, but it will ensure that they will have a penalty on top of that.

I understand and sympathize with, for instance, Vancouver Police Chief Jim Chu who has said that the main effect this would have is a disincentive for people to leave. That may be the case.

I am looking at the committee to examine the incidences of this happening. In Vancouver alone, statistics suggest, for instance, that 53 people have been arrested in Vancouver and 35 were sent back to their provinces since the Vancouver Police Department instituted a program dubbed as Con Air. This allows the Vancouver Police Department to gather up people under warrant, and ensure that those warrants will be enforced by sending them back to the provinces in question.

The unintended consequence of this in a time of budgetary recession is that Vancouver, Calgary and other places might incur fairly extensive expenses by making people return to the jurisdictions from which they came or in which they were charged. There has been no discussion on this bill or at any intergovernmental level of who would pay the costs of that.

There is a reason I have some preliminary worry about this. I mentioned the example of the fairly innocent person who is probably facing a larger offence by ignoring the warrant than the actual offence from which it came. I am concerned by comments particularly from the Conservative side throughout my time in being interested in politics that go toward not having respect for people who come from other parts of Canada. I do not need to talk about the former mayor of Calgary. I do not need to talk about comments from the Prime Minister with respect to a culture of defeat. I am a very proud maritimer, an Atlantic Canadian. It is very insensitive for any politician to say anything disrespectful about people from other parts of this country. When leaders say those things, it is very disheartening and it does not make the country meld together the way it should.

This aspect of the extraterritorial warrant has to be handled at committee with respect and with good back-up evidence as to why this should be done. The efficacy of it has to be certainly examined. With that caveat, we will look at that aspect very thoroughly.

Some of the modernizations I spoke of earlier go to what may not seem like a justice issue, but to the updating of definitions with respect to prize fights. It may be interesting only to a lawyer that the definition of prize fight comes just before the sections on terrorism in the Criminal Code. In any event, people may not know that prize fights, as defined by the Criminal Code, are not permitted in the provinces unless they are part of an exception.

Last night in Moncton, New Brunswick, over 12,000 people attended our new outdoor stadium to receive the Olympic flame. It was a wonderful event. Moncton is the Indianapolis of Canada in promoting sports activities. We have a fourplex arena, the largest and the best east of Montreal, and a coliseum that houses our Moncton Wildcats. It is known as a sports venue place.

The competition that brings Canadians together is evident in the House when members of the Quebec Junior Hockey League, coming from outside Quebec, can beat teams from Quebec City proper. That is a wonderful thing about Canada, that the Moncton Wildcats can beat teams that come from other parts of Canada, including Quebec, in the Quebec Major Junior League.

The definition with respect to prize fight must be modernized to understand that we do not live in the Marquess of Queensberry rules. I am looking at some members now who probably know all about altercations, but we are talking about serious altercations involving the hand and the foot. Often politicians use the foot but in a different way.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

Mr. Speaker, I do not wish to repeat what the committee member just said, but I have the same question as the member for Moncton. I think that the member who just answered has never practised criminal law. In Canada, criminal law is based on the presumption of innocence. I will come back to that idea shortly.

We asked the minister this question. Furthermore it is one of the reasons we are so reluctant to support Bill C-31. I will come back to that during my remarks.

I would like to know why they want to make something a law when it is already working. The presumption of innocence exists, and one is presumed innocent until proven guilty beyond a shadow of a doubt. We also need to know how long an individual's anthropometric records will be kept on file.

Why do they want to make this a law? Have police services asked for this? Did someone, somewhere, ask for fingerprinting?

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

Mr. Speaker, I am honoured and humbled to participate in the debate concerning Bill C-31, an important piece of substantive criminal legislation, with procedural paragraphs as well, that seeks to modernize the criminal procedure and make the justice system more efficient and effective.

Crime in Canada is constantly evolving. It is crucial that our criminal justice system evolves with it. The amendments proposed in Bill C-31 are the latest steps in our continuing commitment to tackling crime and ensuring the safety and security of our communities.

The bill contains some 40 amendments, developed in consultation with our provincial and territorial partners, and other stakeholders in the criminal justice system who have helped us identify processes in need of updating and issues that require attention to keep the criminal law modern and up to date with more and more sophisticated criminals.

Given the limited resources available in the criminal justice system, it has become abundantly clear that we need to find better and more efficient and effective ways to respond to crime, and make better use of those sometimes scarce resources.

I would like to take the opportunity to highlight some of the amendments that the government is proposing in Bill C-31.

First is with regard to agents. With respect to the use of agents, or non-lawyers, the bill would allow the provinces to further monitor the quality of representation by agents of defendants charged with summary conviction offences.

Currently, agents who are not lawyers may appear and may examine and even cross-examine witnesses on behalf of defendants charged with summary conviction offences that carry a maximum term of imprisonment of six months or less.

For summary offences carrying a maximum term of imprisonment of more than six months, agents may represent defendants only if they are authorized to do so in accordance with a provincially- or territorially-approved program.

Agents perform a valuable function, particularly, in northern and remote areas of Canada where native court workers acting as agents for defendants frequently provide assistance to defendants.

We must keep in mind, however, that serious consequences can arise even from a criminal conviction, and many criminal cases involve a significant degree of complexity.

In order to further promote adequate representation for defendants, who choose to be represented by non-lawyers, changes to the rules regarding agent representation would allow the provinces and the territories to set criteria and approve programs for the full panoply of summary conviction offences.

Amendments to the Criminal Code would allow jurisdictions to set criteria or approve programs which would serve as pre-conditions to representing defendants charged with summary offences that carry a maximum jail term of six months or less.

However, in jurisdictions where no programs have been approved and no criteria have been set for this category of offences, agents would still be authorized to represent defendants, as is the case currently.

The situation would also remain unchanged with respect to summary offences that carry a maximum jail term of more than six months. It would continue to be open to jurisdictions to approve programs or set criteria that serve as pre-conditions to representing defendants charged with these more serious offences. However, no agent would be authorized to represent defendants in jurisdictions where no programs have been approved or criteria have been set.

Finally, for any summary offence, it would always be open to agents to appear on behalf of defendants to request an adjournment in summary conviction proceedings.

Second, the bill deals with expert witness evidence.

Amendments in the area proposed in the bill are intended to improve the current regime to ensure that all parties have the opportunity to adequately respond to what is frequently becoming complex and highly technical evidence.

When expert evidence is to be presented at trial, the bill would create new remedies designed to encourage parties to comply with the regime's notice requirements, as well as better address situations of non-compliance.

Proposed new provisions also contain a list of factors which the court must consider in deciding whether to grant adjournments. Where the court refuses to grant an adjournment or reduce its duration, the proposed amendments would require the court to provide reasons. The bill, thus, would send a clear message as to the numerous considerations and significant challenges associated with properly responding to expert evidence.

Hybridization of an offence is the legislative process of converting a straight summary offence or a straight indictable offence into a hybrid offence. This process affords the Crown the flexibility to elect whether to prosecute an offence by way of summary conviction procedure or by indictment. Proceeding by summary conviction offers an expedited trial process and a lower penalty range, whereas prosecuting by indictment involves the possibility of holding a preliminary inquiry as well as a jury trial, and offers a higher penalty range.

The proposed amendments would allow the Crown to select the most appropriate procedure in light of all of the circumstances surrounding the case for six non-violent and specified offences, three of which are currently straight indictable offences and three are straight summary conviction offences.

Hybridization offers a means of ensuring that we make the best use of our courts' limited resources and that more elaborate proceedings involving preliminary inquiries and jury trials are reserved for only the most serious offences.

The hybridization of current straight indictable offences also benefits the accused as it allows the Crown, where appropriate, to proceed summarily in a more expeditious trial process and therefore a lower penalty range.

With respect to leaving the jurisdiction while under an order not to, individuals who flee a province in violation of a bail condition requiring them to remain in that jurisdiction creates special concerns for law enforcement and the entire criminal justice system. Their flight delays and in some cases defeats the course of justice.

The current response to this behaviour is the generic offence of failure to comply with conditions of release charges as enumerated under section 145(3) of the Criminal Code. However, this charge does not differentiate between these bail violations and other bail violations such as a simple breach of curfew.

In order to create a transparent criminal record and emphasize the aggravated nature of this type of bail violation, we propose to create a specific offence of failing to remain in the jurisdiction when ordered to do so.

The creation of this offence is but one part of the response required to the broader issue of enforcing so-called non-returnable warrants. It is not intended to solve the very real challenge of returning accused persons to face trial if they are arrested some distance from where an alleged offence occurred.

The challenge of distance is a practical one and is faced within large jurisdictions as well as within a single province. It comes down to the cost of moving people to where they need to be to stand trial for what they are accused of doing. This is an issue that must be addressed by the provinces under their responsibility for the administration of justice.

Our government is working with our provincial and territorial counterparts to develop practical solutions to address the broader issue of returning accused persons to the jurisdictions where a warrant has been issued against them.

In the meantime, the creation of this new offence is a step in the right direction. The proposal for the creation of this offence is the result of extensive discussions among federal, provincial and territorial officials led by British Columbia. The proposal was discussed and endorsed by the federal, provincial and territorial ministers responsible for justice and public safety at their meeting in September 2008.

The broader issue of non-returnable warrants is complex and a comprehensive solution will likely entail the allocation of significant resources and the development of best practices by provinces rather than further legislative amendments.

Federal, provincial and territorial officials are examining best practices to maximize the efficient use of available resources. Federal officials will continue to work with their provincial and territorial counterparts to identify long-term solutions to this very serious problem.

Currently, the telewarrant procedure is available only for certain warrants, authorizations or orders in respect of searches or seizures. Furthermore, the Criminal Code provides that telewarrants are only available where it would be impracticable for the police officer to appear personally before a justice or justice of the peace to make the application.

Given advances in technology and the trend over the past several years to introduce more technology into the justice system to allow, for example, remote appearances and the electronic filing of documents, expanding the number of warrants which can be obtained through the use of telecommunications simply makes good sense. It contributes to greater efficiency in the use of the criminal justice system's limited resources.

I would rather see police on the streets patrolling and working on investigations than travelling long distances to make an application in person for a warrant before a justice or a justice of the peace.

Included in the list of warrants we propose to make available through telewarrants are tracking warrants, number recorders, as well as production orders for documents and financial records.

In order to streamline the telewarrant process and to make it even more efficient, we are also proposing to remove the requirement that the officer demonstrate why appearing in person would be impracticable in situations where the telewarrant request produces a “writing”. The impracticable requirement will remain where the request is made orally by the police officer.

Next is access to telewarrants by public officers. Through this legislation we are proposing that provisions of the Criminal Code that authorize the obtaining of warrants by telecommunications be amended to include public officers in addition to peace officers. The police who are by definition also peace officers are solely responsible for the enforcement of the Criminal Code and the Controlled Drugs and Substances Act. While they may also enforce other federal legislation, the primary responsibility for the enforcement of non-criminal offences is typically given to individuals who are not police officers but who are designated under individual statutes either as peace officers or sometimes as public officers.

While the powers that can be exercised by these officers are limited to the context of the legislation under which they are appointed, the powers themselves are typically derived from the Criminal Code. The most commonly used power in this context is the search warrant under section 487. Pursuant to this section a warrant may be obtained by either a peace officer or a public officer whose duties include the enforcement of any act of Parliament.

Even though both peace officers and public officers enforcing legislation other than the Criminal Code may obtain warrants pursuant to section 487, the ability to obtain such a warrant by means of telecommunications is limited only to peace officers. As a result, public officers frequently find themselves in a disadvantaged situation in which they require search warrants but are not able to appear before a justice in a timely manner to obtain one. Examples include officers from the Canadian Food Inspection Agency in remote agricultural areas and officers appointed to enforce the Canada Labour Code conducting investigations in relation to health and safety issues on offshore oil platforms.

The ability of such officers to obtain warrants under section 487 is the same as their counterparts who are designated as peace officers and their need to obtain them by telecommunications in a timely manner is equally compelling.

The proposed amendment will not in any way expand the powers that may be exercised by public officers but rather will give them access to the same means for obtaining authorizations for the exercise of those existing powers as is available to other officers able to exercise those same powers. It is in the interest of all Canadians to facilitate the efficient and effective enforcement of our laws by the people that we empower to do so.

Next is the Identification of Criminals Act, fingerprinting, photographing and other measurements. Bill C-31, when passed, would provide an amendment to allow the taking of fingerprints and to conduct other identification processes with respect to a person arrested for a serious offence as specified in the Identification of Criminals Act where that person is subsequently kept in lawful detention. Currently, the act provides that these powers may be exercised where the person is in lawful custody and is charged with or convicted of an indictable offence listed in the act.

A number of conditions must be met for the proposed amendment to come into play. First, the arrest, as any other, must be based on reasonable grounds to believe that the person committed or is about to commit an indictable offence. Second, the police officer must believe, on reasonable grounds, that it is necessary and in the public interest that the person be detained in custody until brought to appear before a justice. Only in these limited circumstances will police be permitted to proceed with the identification process without having to wait for the formal laying of the charge. In most situations the proposed amendments will only affect the point in time where the identification processes are performed.

If the person is ultimately not charged with an offence, or charges are withdrawn or as a result of an acquittal, police services will usually destroy fingerprints and photographs at the person's request. It is important to note that the courts have stated that it is not unreasonable for the police to retain prints where no request is made for their destruction or return.

The proposed changes to the Identification of Criminals Act will result in streamlining the identification process and avoid having to detain the person for an extended period of time while waiting for the actual charge to be laid before proceeding with the much need identification processes.

Now to corruption of foreign public officials and bribery. Finally, in support of Canada's international obligations, the bill contains amendments to the Corruption of Foreign Public Officials Act, the Criminal Code and the Canada Evidence Act.

One of the amendments would give nationality jurisdictions to Canada for offences of foreign bribery. Most of the time, these offences are committed in a foreign country. Currently, Canada exercises territorial jurisdiction. This allows Canada to prosecute an offence committed in a foreign country when there is a “real and substantial link” between the offence committed in the foreign country and the country of Canada.

Nationality jurisdiction would allow Canada to prosecute offences of foreign bribery committed outside Canada by Canadians, permanent residents of Canada and Canadian corporations without having to provide evidence of a link between Canada and the offence. This would facilitate prosecutions of foreign bribery cases.

In addition, we propose to add the word “selected” to the definition of the word “official” in section 118 of the Criminal Code, which applies to corruption provisions. Currently, this regime applies only to persons appointed or elected.

The Federal Accountability Act provides that the appointed process for some members of the public service include consultations with Parliament. Under this process, the name of a person “selected” for an office is made public before the person is actually appointed but the person is not an official under the current definition and, therefore, not subject to the bribery provisions until the legal appointment.

In addition, the Organization of American States, or the OAS, and the Inter-American Convention Against Corruption, which Canada ratified in 2001, requires the criminalization of bribery to officials “who have been selected, appointed or elected”. The proposed amendments would correct this gap in the current law.

The bill contains many other amendments, such as those that would update the outdated prizefighting and parimutuel betting as recommended through consultations with our federal, provincial and territorial stakeholders, and other levels of government.

I trust that all members will give this bill the support that it requires. The amendments would contribute to the significant improvements in the efficiency and effectiveness of the criminal justice system that all Canadians are asking for. Criminals are evolving and becoming more complicated and sophisticated and the law must evolve to keep up.

[Rona Ambrose, Conservative, Edmonton—Spruce Grove, AB]

moved that Bill C-31, 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, be read the second time and referred to a legislative committee.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

Madam Speaker, in my career as a criminal lawyer, my most important client was always the one in front of me, whom I had to defend before the court. It is worth repeating: justice issues are very important. I do not mean to denigrate the work of other members, because I respect what they do, but this work is very important because it gives people their freedom. We must give this the attention it deserves.

As a parliamentarian and a lawyer, when someone forgets—I was going to use another word, but I will avoid it so as to avoid a point of order—deliberately or not, to hand over documents or to give us the information we need to make decisions, I take exception to that. In fact, I think I should take exception more often.

Bills C-52, C-42, C-36, C-31 and C-32 need to be studied immediately. Should they be studied quickly? No, we will take our time and give them the careful consideration they deserve, as we should and as we are expected to do. Then we will see.

For now, the issue that concerns me is Bill C-36. In my opinion, we must take time to give it the consideration it deserves. The Conservatives must stop forgetting to give us the documents needed to study this bill.

Business of the House

[Jay Hill, Conservative, Leader of the Government in the House of Commons]

Mr. Speaker, today we will continue with Bill C-57, Canada-Jordan Free Trade Act.

If we were to complete that, I would intend to call Bill C-23, Canada-Colombia Free Trade Agreement Implementation Act. I would point out to my colleagues that this bill has already received more than 30 hours of debate in the House and yet the NDP and the Bloc continue to delay the proceedings and hold up this agreement that would create new business opportunities for Canadians from coast to coast.

As I indicated this morning, tomorrow will be an allotted day.

Next week we will once again focus on our justice agenda beginning with the report and third reading stage of Bill C-36, An Act to amend the Criminal Code followed by Bill C-31, 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. Then we will have Bill C-54, Protecting Canadians by Ending Sentence Discounts for Multiple Murders Act; Bill C-55, An Act to amend the Criminal Code, the response to the Supreme Court of Canada Decision in R. v. Shoker act; Bill C-19, An Act to amend the Criminal Code (investigative hearing and recognizance with conditions); Bill C-53, Protecting Canadians by Ending Early Release for Criminals Act and finally, Bill C-35, Justice for Victims of Terrorism Act. All of these bills are at second reading.

On the issue of a NAFO debate, I would remind the hon. House leader for the Liberal Party that is what opposition days are for.

[Jay Hill, Conservative, Leader of the Government in the House of Commons]

Mr. Speaker, in relation to what day the House will be doing its annual tributes to the sacrifices of our veterans and those in the Canadian Forces currently serving, that will be under negotiation. I suspect that is something that will be discussed among all House leaders in the days ahead. We will decide, obviously, collectively and co-operatively on the appropriate time to make that important tribute.

In regard to our ongoing justice program, obviously we are going to continue along, as we have last week and this week, for the remainder of the week with our justice legislation. I would note that since my last statement, we introduced Bill C-53, Protecting Canadians by Ending Early Release for Criminals Act, and Bill C-54, Protecting Canadians by Ending Sentence Discounts for Multiple Murders Act. Both of those additional bills are a key part of our ongoing efforts to reform the justice system in our country.

We sent to committee this week Bill C-42, Ending Conditional Sentences for Property and other Serious Crimes Act; Bill C-52, Retribution on Behalf of Victims of White Collar Crime Act; Bill C-46, Investigative Powers for the 21st Century Act; and Bill C-47, Technical Assistance for Law Enforcement in the 21st Century Act.

By the day's end, we hope to conclude debate on Bill C-43, Strengthening Canada's Corrections System Act. If we do that, I intend to call Bill C-31, the modernizing criminal procedure bill, and Bill C-19, the anti-terrorism bill.

Tomorrow we will continue with yet another justice bill, Bill C-35, Justice for Victims of Terrorism Act, followed by the remainder of the justice bills that I noted if they have not been completed.

Next week I intend to call Bill C-50, the employment insurance for long tenured workers' bill, which is at report stage, having had it returned from committee.

Following Bill C-50, we will call for debate the report and third reading stage of Bill C-27, Electronic Commerce Protection Act, and second reading of Bill C-44, An Act to amend the Canada Post Corporation Act,

Finally, Wednesday, November 4, will be an allotted day.

[Jay Hill, Conservative, Leader of the Government in the House of Commons]

Mr. Speaker, I will proceed in the same order in which my colleague presented his questions.

We will continue today with our government's justice program because this is a justice week. We will be starting with our latest edition, Bill C-52, the retribution on behalf of victims of white collar crime bill.

That bill will be followed by Bill C-42,, the conditional sentencing legislation; Bill C-46, the investigative powers legislation; Bill C-47, the technical assistance for law enforcement legislation; Bill C-43, legislation to strengthen Canada's corrections system; Bill C-31, modernizing criminal procedure legislation; and Bill C-19, the anti-terrorism act.

All of these bills are still at second reading, but members can see from the long list that we do have many pieces of legislation to debate and hopefully move through the legislative process.

We will continue with these law and order bills tomorrow and next week when we return from the weekend. As is the normal practice, we will give consideration to any bills that are reported back from committee as well.

On the issue of an allotted day, Wednesday, October 28 shall be the next allotted day.

We will then resume consideration of the government's judges legislation on Thursday following that opposition day.

As my hon. colleague from across the way mentioned, speaking of our justice agenda, I should add that I was extremely pleased to see that despite the Liberals' best efforts to try to gut the bill, it was passed in the other place. For those who are not aware, there were 30 Liberal senators in the other place at the time when they were voting on those amendments. All of them voted for the amendments that would have gutted that legislation. Fortunately, the Conservatives in the other place were sufficient in number to defeat those amendments and actually pass Bill C-25, the truth in sentencing legislation. It actually received royal assent earlier today.

I would like to thank my hon. colleagues, the Conservative senators, for all the good work they did in pushing that bill forward and for all the good work they are doing in pushing forward other legislation.

The House dealt with Bill S-4, the legislation to crack down on identity theft. It was passed and received royal assent as well today.