Mr. Speaker, there comes a time in the affairs of a nation when the opportunity is at hand to change the course of events. Most often at that particular moment, little notice is given and the significance of the missed opportunity arises only in retrospect when we search for the cause or the seeds of some disaster. Such may be the situation before us today with Bill C-41.
We have in this bill many technical amendments to the Criminal Code which the public may not deem as momentous or strategic. It will be interesting to see if the press gives this bill much more than a day's worth of print. This is a sad and disheartening situation. In many respects the Canadian Criminal Code is a national document, is a particularly Canadian creation and has been one of the things that has bound us together as a nation. How we as a society write down the limits of personal conduct and define our sense of national morals reflects the basic character of what it means to be a Canadian. The written code gives substance to the national sense of community.
In the Criminal Code we are dealing with life and death, with the very tools of peace, order and good government. In a most basic way it is an aspect of how we as Canadians describe ourselves, who we are. We are not American or European but distinctly Canadian in our interrelationships with one another in our local communities.
The Criminal Code is a statement of how we as a national community attempt to protect our society. The Criminal Code by reflection describes what Canadians hold dear and value. It can also reveal the limits of our ability to govern ourselves through our institutions. Unlike the United States and most of the less viable principalities of the third world, our Constitution does not include a lofty statement of transcendent national principles. Nor do we have a charter mythology.
We are very permissive in allowing our fellow citizens, provincial governments and business establishments, to fly the flags they prefer for allegiance or anticipated commercial advantage. We have disloyal parliamentarians in the Chamber who have given up on Canada and who are working to have the representative voice of their great province no longer heard from these desks.
July 1 is our Canada Day but some Canadians get more emotional satisfaction out of celebrating St. Jean Baptiste, Christopher Columbus or Robert Burns. No doubt for a few here and there it would be Queen Victoria or even Joey Smallwood. When a most gracious and forbearing lady visits one of the countries under whose constitution she continues to be the head of state, she is met by most Canadians with respect and adulation, some with indifference and a few with discourtesy.
If nationhood is sharing and Canadians seem to share few common sentiments, what are the bonds of Canadian association? It is meaningless to say we share a common territory, that citizens of Windsor share a common territory with their fellow citizens of Halifax or Yellowknife but not with their neighbours in Detroit, only because of the way the national boundaries are drawn. It is not very helpful to say that Canadians share a common citizenship without some account of the obligations and the privileges of that citizenship.
There is perhaps an alternative definition of nationhood. A national community is based on a sharing of claims both individual and collective. These claims are made against individual citizens, private groups and public authorities both within the nation and outside the nation. These claims are honoured by a structure of political relationships that acknowledges no superior authority. In the idea of shared claims and responsibilities we find the reality of Canadian nationhood in such places as the Statutes of Canada and the Public Accounts of the Government of Canada. Here are some things Canadians share.
The first is a national Criminal Code and rules of criminal procedure. In these are embodied some of the most important mutual claims of citizens and the Canadian community. Canadians share a common system of penitentiaries for the incarceration of those guilty of the graver offences against these laws.
Second, we have a national commitment to the Canadian social safety net to be implemented through joint action of the federal, provincial and local authorities. The most important elements are the various programs of income maintenance and the removal of financial barriers between citizens and their access to medical, hospital and educational services.
Canadians can move freely throughout the nation without thereby suffering a termination of health or income security benefits. Yet within these national characters Quebec has been permitted the freedom to go its own uncoordinated way and create duplication in medicare, unemployment insurance and immigration.
As Canadians we are proud we have a national commitment to the alleviation of regional economic disparities and to interprovincial fiscal equalization. We have had a national commitment to the support of the arts, letters and sciences, along with other creative activities in broadcasting, film making, et cetera. We have a commitment as a nation that wherever practical Canadians will have access to the Government of Canada and its departments and agencies in the official language the citizen chooses.
Through trade and tariff policies and national taxes we have a national assertion that Canadian capacity to produce can be shared on a nationwide basis. This list is by no means exhaustive. Other items might be added in terms of environmental policy, public legal aid, equality before and under the Canadian law, foreign ownership rules, the extension of broadcasting services to remote uneconomic areas and a national approach to international competition in sport.
Only in terms of national community is it possible to explain or defend the magnitude of the budget of Indian affairs compared to the absence of Canadian assistance to other traditional peoples undergoing the strains of modernization elsewhere in the world. Only national community justifies Ottawa's help for Newfoundland fishermen and its lack of help for the people in similar circumstances living in nearby St. Pierre and Miquelon.
Bill C-41 is certainly a measure of the view of the government about what it thinks is going on in our Canadian society and community. Amendments to the Criminal Code can be a measure of the government's sense of the need to move, to change or to alter the status quo. The bill represents the status quo, business as usual and perhaps maybe even a cynical view of Canada. It sends the message that the best we can do is a little maintenance and housekeeping, and that a sense of vision of a new and better Canada is not worth seeking. More likely the vision of a new Canada is not within the capability of the government.
The sense of urgency I hear from constituents about the grave need of government to mind the store, to take care of the business of the people and to reform the justice system is a theme that comes from every region of Canada. Like so many other things for which the government has lost the sense of proportion, the lack of fundamental inspiration to govern responsively is clearly evident in this timid housekeeping bill. It seems that the times have passed by the government. My
colleagues across the floor do not seem to have heard the cry from Canadians concerning law and order.
My Reform colleagues represent, therefore, a new wave of change. In Bill C-41 we can see the comparison that the government is stuck in the past. The bill is clear evidence that the old line parties which embody the old line attitudes and ways of thinking do not adequately address community expectations of today.
From this side of the House we have been calling upon the government to wake up. We call it to action to deal with the needless tragedy we are facing from debt and deficit, to rethink the responsiveness of our democratic institutions, and most especially to address law and order reform.
I am here to tell the government benches that the justice system is not sound. The justice system needs more than tinkering from a Bill C-41. There are few, save those within the professional criminal justice community, that have any respect or even basic tolerance of how the government minds the store concerning crime. They know the justice system does not work sufficiently well.
It is from within this context that Bill C-41 and Bill C-42 come to the floor of the House of Commons. It certainly is a measure of where the government is at. I do not need to get into name calling for evidence of inadequacy and the lack of vision is on the table for the nation to see. Bill C-41 will do little to respond sufficiently to what the community wants and needs. Here we have a piece of legislation that is interesting in parts, irritating in others, but utterly fails to respond to what the country is asking for in terms of reforming the criminal justice system.
The government desperately needs to get the machinery of the justice system moving to respond to community needs. I have heard the pleas of my constituents and have responded by stating them clearly in the House. The time has come for the government to listen to all Canadians.
At some point one must draw a line in the sand, draw attention to a bill and then the attitude it represents, the magnitude of the inadequacy, the missed opportunity and the disappointment of the community when comparing results with promises. The bill is such a disappointment.
As Canadians begin to understand that in bill after bill the same pattern emerges, that there is no vision or comprehension of what the community wants, they will likely elect Reformers in sufficient numbers to govern. The nation then can get on with real law reform and build a criminal code that would probably be half as long but clear and resolute, understandable and, above all, would operate in a manner that represents mainstream Canadian values.
The change that my election to the House represents is a new type of change. Reformers represent not business as usual, incremental change as reflected in Bill C-41, but discontinuous change that is not part of old patterns. The courage to make bold changes is sometimes confusing and disturbing, particularly to those in power and to those who are being left behind like the authors of the bill.
It is sometimes small, fundamental changes that can make the biggest difference to our lives. Even if it goes unnoticed at the time it is the changes in the way we view our relationship to our constituents that make the biggest difference in the way we legislate. If we can change the justice system, this nationally shared structure, we can demonstrate that in all areas we can build a Canada where all its citizens will want in for the goodness we share rather than want out to keep for themselves what serves their own purpose.
The discontinuous change I am talking about, the vision of a new Canada, may require upside down thinking different from the old patterns even if the bold changes appear not understandable or discordant at first sight.
Certainly the self-described Quebec militants on this side of the House have a quest that has outlived its usefulness. Their aspirations longed for in view of the problems we all face cannot be fulfilled by the passé dreaming of the militants for a former age. No longer can they squarely respond to the problems in a world of new international realities. We are all in the same boat. Indeed the ship of state is leaking and the tired ideology of the current government can only think of patching a little here and there as evidenced by the inadequacy of Bill C-41.
There is a leaner ship to be built of a new order of technology and thinking. For the militants to use a lifeboat to try to separate from the old ship will only bring them to a situation of drifting through rough seas in a small boat with no protection or capacity to ride the storm waves of international change. It will not accomplish the results they seek.
There is too much crime in Canada. We want safer streets. We want community mechanisms to break the cycle of violence. The Criminal Code sets the standards and the boundaries; our community institutions must fill the need.
Change begins with the recognition that a problem exists. In Canada everyone knows we have a crime problem that is at unacceptable levels. Our justice system is operated apart from the community. It is time the justice system accounts for its results and what it has done on a delegated basis on behalf of the community.
Who owns the justice system anyway in the long run? Crime, and society's response to it, is a big industry. A lot of precious community resources are spent on its seemingly unaccountable operations. The way it operates Canadians could believe that it is the insiders in the criminal justice community that run things for themselves.
We need an interrelated sequence of process in the administration of criminal justice that is simple and cost effective. There must be consistency in philosophy from the moment an offender has the first contact with the police to the time of final discharge. The new thinking required hopefully will bring a general policy which woven into the entire system would guide the various services with a uniform theme.
The community intuitively knows a coherent philosophy to integrate the various stages of administration of criminal justice does not exist. The system as a whole is more like subsystems within which pragmatic guidelines have been developed to enable the professionals involved to fulfil their occupational roles as they perceive them. This situation must change.
For example, what frustrates an outrageous public opinion is justice delayed. It is offenders roaming the community unaccountable. It is sentencing that does not reflect mainstream community values. It is the misplaced priorities of an offender focused system. It is a system that by its poor account of itself fails to earn the confidence and support of the community it is supposed to serve.
Specifically in the bill we have heard the government side describe the efficacious substance of Bill C-41. It is a reworking of Bill C-90 from the last Parliament. I like some things in the bill as it codifies what we have been doing in British Columbia for years, specifically alternative measures in the adult system akin to the provisions of the Young Offenders Act. In B.C. the crown simply exercises its prerogative to refer files to the B.C. corrections branch where probation officers will explore alternatives to court and arrange dispute settlement arrangements. We have even had some private contracts for offender-victim reconciliation projects.
The form of the law is now following the function of the law. However, what the government gives with one hand in modernization in this section, it takes away with the other by denying victims assistance in establishing responsibility in civil proceedings. Disclosure of records of diversions can be made to insurance companies but cannot be used to establish liability in civil proceedings. A nice double standard. The records of the alternative measures cannot be used in evidence in subsequent offences after two years. This is unacceptable.
Specifically section 718.2 goes in the right direction by outlining sentencing principles but the aggravating circumstances section is incredible to say the least.
A vicious assault based on hate criteria is to be dealt with more harshly than an equally violent assault that was done for money or just for kicks.
In this section interestingly the grounds listed are the same as in the charter of rights except this bill has added sexual orientation.
Section 718.2 goes in the right direction in part (b) by saying that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.
This notion has always been an operative principle of argument at the sentencing stage of the court process. However, with our tremendous capacity to quantify statistics with computers we have the ability to produce a comprehensive sentencing grid of what currently is happening across the nation in sentencing. A rational sentencing grid that plots the hierarchy of offences with their prevailing tariffs against the culpability and history of the offender could go a long way in responding to the inequities of sentencing and the lack of public confidence in the system.
If there are no benchmarks to compare the principles of specific deterrence to the individual and general deterrence to the community it fails to operate very well. In producing a national sentencing grid document the community could then deal with appropriate retribution as distinct from revenge.
Retribution is based on the principle that the punishment should fit the crime and be properly meted out and controlled by the state. Revenge on the other hand is characterized by lawlessness and its excesses.
The government had an opportunity here to be bold in this respect and it has failed. This bill outlines old principles but then fails to provide the tools to accomplish them. Then to top it off the very next section in part (c) reads, and pay attention now because I know my community will chortle at this one: "Where consecutive sentences are imposed the combined sentence should not be unduly long or harsh". What is the sense of this type of language in the Criminal Code?
While I am talking about basic sense I can hear the insult to aboriginals inherent and implied in section (e) of this part: "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". Here we go with paternalism again.
Further in this section it is time that a sentence including a fine, some jail and probation be possible rather than just two of the three. Again this bill fails to modernize and provide latitude for innovation.
It is heartening to see that in the last few years because of community agitation the victim is gradually being written into the statutes as having standing in law and a valid interest and stake in criminal proceedings. Nevertheless the wording of 722 prescribing what is permissible in victim impact statements is far too narrow.
Nowhere is the relationship of the victim to the offender allowed to be described. Neither are the views of the victim concerning appropriate consequences allowed to be heard. This paternalistic controlling view over victims at court is out of date and not worthy of this well intentioned but inadequate bill.
In section 722.1 a similar controlling attitude is reflected in the letter of the law where the clerk of the court shall provide a copy of a document after filing. At the behest and convenience of the author presentence reports and psychological evaluations should optionally be made available directly to the offender or counsel and the prosecutor. There is no need for the clerk to control or have complete ownership of the transmittal of documents. Here is another case where the law should follow function and practice but it does not.
In section 724(e) proof beyond reasonable doubt is unreasonably harsh for the crown to refer to any previous conviction by the offender. In the same vein section 727 is completely archaic and unnecessary as it does not accomplish any tangible objective.
It is an anachronism to have special procedure requiring the crown to give special notice that a greater punishment would be sought because a criminal is a repeat offender. There should be no such item in the code.
Section 732.1 is irritating in sub (3)(g) where an offender's permission is needed for the judge to be able to sentence them to a treatment program when offenders have specific problems such as substance abuse or sexual problems.
Sentencing is given to an offender in court on behalf of the community. There is not a community meeting to explore palatable choices to the likes of the offender. Here we have 1960s thinking again that invokes all the arguments about the utility of court ordered treatment.
We are long past this mentality with the vast experience of dealing with sexual offenders. I suppose the justice minister's advisers hang on to their old fashioned notions about criminals. The outdated principle is repeated again in section 747.3 concerning hospital orders.
Certainly a probation order should be able to be extended beyond three years for special cases. Under section 732.2(1) an offender can be called back to court by the initiative of the probation officer. The section allows the offender and the prosecutor to be heard in such circumstances, but what about the probation officer who initiated the proceedings in the first place?
When an offender is messing up or revealing new or previously undisclosed problems new, more onerous conditions should be allowed to be added to an order. This only makes sense but the law prohibits common sense response.
Additionally when a probationer violates the order of the court section 733(1) should involve a reverse onus provision for the offender to show cause why a sanction should not be applied for breach of the sentence and make the section parallel to section 742.6(9) of the breach of the conditional sentence.
Section 743 states: "Everyone who is convicted of an indictable offence for which no punishment is specially provided is liable to imprisonment for a term not exceeding five years". Simply put, it should read 10 years.
I now come to section 745.6. This section is so disturbing it alone brings the law into disrepute. This section allows first degree murderers to apply parole after serving only 15 years of their sentence. Private members' bills have been introduced to repeal this provision. There is little support from the community for this measure. I cannot emphasize enough how fast this procedure should be done away with.
The minister is all too well aware of the national feeling on this clause, yet he persists. It is utterly incredible and an insult to Canadians.
Section 750 spells out when holders of public office such as members of Parliament will be vacated for conviction. Five years in jail is a most lenient if not absurd standard. I suggest the mere conviction of an indictable offence should be sufficient.
Section 751.1 outlines the civil option to recover costs for defamatory libel. Of course unless the personal bankruptcy provisions are also changed in other statutes this provision is meaningless as it is for civil court judgments arising from deliberate and malicious harm.
This bill really does nothing to address bringing greater certitude to the criminal sentencing process. Despite the codifying and writing down of the purpose and principles of sentencing judges will still have too wide a latitude in imposing inconsistent sentences. The aggravating factors section certainly flies in the face of the principle of equality before the law.
How can we on this side of the House support this most disappointing bill? I call on the government to bring in some
amendments so we can speed the bill on its way. Let this bill reflect Canadian values and bring forward Criminal Code amendments that are needed, rather than just tinkering with the system.
A needed change for example is the category of sex offences that are just summary and not dual which removes these offences from the identification procedure. Street prostitution is dealt with by the issue of a street-side ticket, a consequence of the summary status of section 213.
In this bill where is the ban on replica firearms and the needed amendments to section 85 of the criminal use of firearms? Where is the section on the public disclosure with respect to dangerous offenders and also the designation of such to be done at any time during a sentence, not just at the beginning? Where is the provision for the collection and analysis of DNA testing? I could go on.
The picture is clear. This government is in no mood to give Canadians the legal climate desired because it is not predisposed to renew a system that we have inherited from its type of outdated thinking. Criminal justice in Canada is not particularly systematic. At the heart of the system is the necessary conflict between the competing value systems of crime control and due process.
The administrative and legislative responsibility for its functioning is fragmented between different agencies responsible to different levels of government and in some cases between a number of private organizations and different levels of government. There will always be the task to balance individual rights and the general security of the community. I had hoped that Bill C-41 would have clarified what is paramount in this regard but it does not.
The next step needed is to inculcate a sense of the interdependence of the criminal justice system with broader social and political processes which have an impact on every Canadian.
The criminal justice system in turn is part of a larger whole, the social forces such as health care, education and welfare services which bear upon the quality of Canadian life.
Those who have the disposition to resist the disintegration of the Canadian community from within or its absorption into the maw continentalism from without have for too long been on the defensive. We have been too slow in formulating the credentials of this glorious community, too bemused by academics who would rather define it out of existence, too preoccupied with the emotional, symbolic and cultural dimensions in nationhood.
It remains that as far as the political order is concerned, there is only one Canadian question. How can the over 27 million people who live within our national boundaries establish and sustain governmental institutions which are at once humane, effective and responsive?
The times now require a national community to be held together by a national government of a first class, triple-A rating; one that is approachable, accountable and most of all affordable. The bonds that we do have, the national values and national commitments of this country, are concretely embodied in particular measures for honouring the mutual claims and responsibilities of citizens and governments for each other.
If the present claims and ties can be sustained and new definitions agreed upon such as a renewed justice system, Canadian nationhood may need nothing more to reflect the greatness of the human spirit working together in common enterprise.