Bill C-41 (Historical)

Amendments and Corrections Act, 2003

An Act to amend certain Acts

Criminal Code

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

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

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

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

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

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

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

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

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

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

The Supreme Court stated that aboriginal offenders:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Business of the House

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

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

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

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

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

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

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

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

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

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

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

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

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

Committees of the House

[Reg Alcock, Liberal, Winnipeg South, MB]

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

Amendments and Corrections Act, 2003

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

moved:

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

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

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

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

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

I want to quickly summarize the provisions of this bill.

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

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

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

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

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

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

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

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

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

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

Bill C-41. On the Order: Government Orders

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

Business Of The House

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

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

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

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

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

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

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

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

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

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

Amendments and Corrections Act, 2003

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

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

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

Criminal Code

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Supply

[Kevin Sorenson, Canadian Alliance, Crowfoot, AB]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Effectively, according to Professor Hiebert, the charter offers:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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