Debates of June 13th, 1995

Criminal Code

[Andrew Telegdi, Liberal, Waterloo, ON]

Mr. Speaker, I rise to speak on Bill C-41.

Let me first pay homage to the hon. member for Halifax. Her comment about the influence her mother had on her definitely indicates a life well spent and she can be very proud of it. I am proud of it as a Canadian.

A lot of misinformation is floating around about Bill C-41. It is quite a comprehensive bill. It is a major bill. One hon. member mentioned some misgivings about the issue of alternative measures. Alternative measures refer to cases where jail is not appropriate and community service can be utilized. Rehabilitation is first and foremost and saves society money, as well as being more humane.

My seatmate from Mississauga South had a part to play in the bill, including special considerations for family members. I applaud him for that initiative.

The controversial section of the bill is section 718.2. It deals with hate motivation. One of the things I heard most often is that we are conferring special status on homosexuals. We are giving them special treatment. Let me just say that the law applies equally to heterosexuals and homosexuals.

If a group of gay people or homosexuals were to attack a heterosexual, the law would have the same application. Everybody is equal before the law. That is an important point to make because a lot of people would propagate misinformation on this bill.

When I listen to arguments in the House about hate crime I really am amazed. This is the year we celebrate the 50th anniversary of the end of the second world war. We are all proud of the contributions that Canadian soldiers made.

Let us think back to what happened during the second world war. Everybody seems to forget. Let us talk about some of the hate crimes that occurred during that war. The horrors that the Jews suffered are well known. First they lost their property, their jobs, their civil rights. Then they were taken to the gas chambers. When the war came to an end six million Jews had died in the holocaust.

I cannot for the life of me understand how this year when we are celebrating the 50th anniversary of victory in the second world war we could have such flippant attitudes in the House about hate crimes. It is just amazing.

We have all heard about the Spirit of St. Louis that went from port to port looking for refuge for Jews. They were turned away at port after port and were sent back to their deaths. Nobody wanted to know or to believe this was happening.

A few short months ago we remembered the 80th anniversary of the massacre of the Armenians when 2.5 million people died. They died because of hate. Finally we seem to have some good news coming our way. Members of the IRA are putting down their arms. What is the basis of that conflict? It is a religious conflict-hatred.

Take a look at the present situation in Yugoslavia. What do we have there? It is not some minor disagreement. A holocaust is

occurring right now and it is based on hate. There are also the Hutus and the Tutsi in Rwanda. It goes on and on.

Recently I attended a NATO conference in Budapest in eastern Europe. The major problem discussed in the civilian affairs committee related to the treatment of minorities and avoiding the examples of history. How do you do that? It is done by recognizing that hatred for others because they are different from us can have a very drastic impact.

Let me express a bit of a disappointment. When this new Parliament started a new party came into the House that promised to treat politics differently and not heckle other people while they were trying to speak. I am referring to members of the Reform Party. They have been a major disappointment on this issue to me personally.

I come from the community of Kitchener-Waterloo where neo-Nazis have made their presence felt. They have marched in front of European Sound. They have spewed forward their hate propaganda. One of the Jewish activists in my community, Mona Zetner, had her house burned down. She had to go into hiding.

As a person who came to this country as a refugee having grown up in war torn Europe, I can appreciate what hatred has done. I would suggest to members of the House that perhaps they might think about that, look around at the problems in this world. Many of them come from hatred.

I heard many people talking about how this bill has had no support. The United Church of Canada supports this bill. The Centre for Research-Action on Race Relations has urged members of Parliament to support it. The Urban Alliance on Race Relations support the bill.

I say this to my colleagues in the Reform Party because they often ask for the police officers' stance. The chief of police for Ottawa says: "As chief of police, I strongly support this legislative change that will allow my officers to effectively work to counter hate crimes in our community. I urge the quick passage of Bill C-41".

The Canadian Jewish Congress, a community so much more than many others knows the effect of hate and hate crimes, supports the bill. The list goes on and on.

Let me end with the support that comes from the Canadian Federation of Municipalities. At its March meeting held in Ottawa, the Federation of Canadian Municipalities' national board of directors endorsed a resolution concerning violence arising from hatred over race, religion, gender and sexual orientation. FCM supports the position taken in Bill C-41 which would provide sentencing guidelines to enable judges to impose tougher sentences on those who commit crimes of hate based on race, religion, gender and sexual orientation.

These people represent the grassroots of the country and are at the level of enforcement of the law. I stand with them and I stand with my colleagues in the Liberal Party who are going to pass this bill. I am going to do it proudly.

[Randy White, Reform, Fraser Valley West, BC]

Mr. Speaker, I am glad tonight that the Liberals have resolved all the problems of Canadians so now they can create some more with Bill C-41.

I was talking to a fellow today about Bill C-41. He said that the solicitor general will probably have a little bit of a new job as a result of this. He will have to get new signs outside of the prisons now. We will not call them prisons. We will call them institutes for the morally challenged. That is where this kind of legislation is heading.

One of the Liberal members talked about incidental terms, minor terms. Why are we talking about section 718.2? There are so many other good things in this bill. Why are we concentrating on it?

It is truly sad that the Liberal government does not get it. We need a sentencing bill. What we have is a sentencing bill mixed into an omnibus bill that has every other agenda that Canadians do not want. How do we deal with a debate when we want improvements to sentencing but all these other side issues of the Liberal government are involved in it? We vote against it even though there are some provisions that might be good. We have to vote against it because it has some things that are ridiculous.

I note in the bill on page 3 there is an attempt to define things. For instance, there are definitions of accused, alternatives, what a court means. There are all kinds of definitions in the bill. It escapes me as to why the definition of sexual orientation is not in the bill.

If it is undefined, who gets to define it? All of the lawyers in the country who are going to spend an inordinate amount of our money at the cost of victims, once again will define sexual orientation. They are also going to be defining other issues in the bill, issues based on bias, prejudice and hate.

This will come about at the cost of the victim once again running through court case after court case trying to get definitions. I might try to help the Liberal government because I am going to define it tonight. I am going to define sexual orientation.

I get my definition from a number of authors produced in a book by Victims of Violence with which I have had some association in the past. They say that the term sexual preference and sexual orientation are essentially the same thing. In fact, in the index of the recent Sex in America study under sexual orientation'' the reader is directed to seeAttitudes About Sex'', which includes sexual preference. Both refer to the type

of individual a person is sexually attracted to. If pedophiles are ever to hope to be protected by the law, they must first show that pedophilia is a sexual orientation.

I would like to read a couple of quotes in an attempt to define it, because they do not have the courage to do it.

Dr. David Greenberg, a psychiatrist at the sexual behaviour clinic at the Royal Ottawa Hospital, said: "Heterosexuality, homosexuality, pedophilia-they are all just different orientations and an individual may have a number of them".

The first lawyer who comes up on the first case of pedophilia will attempt to define it. Perhaps the lawyer for Alan Winter, a pedophile from my area, will attempt to define it, because the government has not the courage to define it.

Kim Tate, author of Child Pornography , 1990, defined a pedophile as ``an individual above the age of consent who prefers to have sex with children and who fantasizes about them''. That is found at page 104.

Dr. Fred Berlin of the John Hopkins Medical School, in the Focus on the Family newsletter, number 11, November 1992, said that pedophilia is a value judgment and it may be a different kind of sexual orientation.

Do they understand where these folks are coming from? If this government does not define sexual orientation then other people will in the courts. If the government has not the courage of its convictions, why is it leaving it to the courts?

The comment I hear from a Liberal member is that statutes are normally interpreted by the courts. That tells us everything about the reason the Liberal government will not define sexual orientation. It will leave it to the lawyers to do it at the cost of young kids in this country.

Dr. Paul Cameron of the Family Research Institute in Washington said: "Sexual orientation is as ambiguous as political orientation".

Why will the government not define it?

Let us go to a quote from the Right Hon. Prime Minister when he was the justice minister. He was asked in the House of Commons on January 21, 1981, what sexual orientation meant. He stated:

It is because of the problem of the definition of those words that we do not think they should be in the Constitution. Do not ask me today to tell you what it is, because those concepts are difficult to interpret, to define and that is why we do not want them in the Constitution. I am not going to venture to tell you what is sexual orientation. I am not interested; and I will not fall into that trap, because we do not want them for the very reason that it is socially and in terms of law it is a very difficult area.

In 1981, before he was Prime Minister, he did not want it. And here we are in 1995 and he does not have the courage to define it. He is going to leave it to the courts.

One only has to have some experience with a pedophile to understand what is going on. In my community, Alan Winter had a foster home. He had over 80 children sent to him by one of the governments in the country. Thirty-one of those people, of whom I have met a number, were all molested by Alan Winter. He got sentenced to 16 years in prison as a dangerous offender but of course the parole board let him out in a little over five years. That is a different story, which will hit the House one day soon.

An hon. member said that has nothing to do with this bill but it has everything to do with this bill. This government does not have the courage to define sexual orientation in section 718.2 of Bill C-41. It is going to get defined, and the very people who are committing unlawful acts of pedophilia are going to use sexual orientation as an excuse. That is what is wrong with it.

Some say this is fear mongering; some say this is homophobic. This is reality. This is what the lawyers out there are sitting on. In fact I have a video of a lawyer in this country saying exactly that: that will be his defence.

Since we have over 80,000 signatures from petitioners from every province and territory in this country saying do not proceed with this area of the act, why is it that the government chooses to ignore those people? Why is it that this government chooses to ignore people by restricting debate and calling closure on this particular bill, on MPs' pensions, on Bill C-68? Why is it?

There is one word this government should remember. It is "retroactive". When we get on that side of the fence, the tables will be turned.

[Carolyn Parrish, Liberal, Mississauga West, ON]

Mr. Speaker, I was not really prepared to speak this evening. Actually I do not even have House duty, and I have been sitting here since early this afternoon listening.

When we listen to things like this we really firm up our own beliefs and become very aware of how nasty human beings can get, how obtuse human beings can get, how they can purposely change things to suit themselves, and how they have obviously lived a life not subject to prejudice.

When I was a little girl my mom took me to kindergarten and registered me. I am a Polish kid. We went up to the desk and people said to her: "What is the name of the child you are registering?" She said "Carolyn". She looked at me for a minute. My maiden name was Janozeski. Because she had been beaten up and told she was a smelly polack from the time she was a small child, she changed instantly my last name to Janis. For many years I was functioning under a pseudonym.

The profound effect of being told she was a smelly polack and there was nothing she could do to defend herself against that accusation except scrub herself, change her clothing, make sure

she was always clean, was that when she took me to school when I was five years old she changed my name.

The thing that really bothers me is people who fit into this category that everyone is objecting to so strongly. They cannot scrub themselves, they cannot change their clothing, they cannot change the colour of their skin. But we can protect them against people who do not understand what goes on inside that skin.

It is very important that we keep very clear that this is a sentencing bill. It is not condoning any acts that seem so offensive to the people on the other side of the floor. It is saying to them that if you do not like the colour of someone's skin or if they happen to have the outward appearance of a different sexual orientation from yours, you cannot walk up to them on the street and punch their head in. There is nothing they can do to protect themselves against those types of accusations. Therein lies the frustration.

In a country like Canada we protect those people. We protect each other. In fact, if anybody you are protecting hits anybody for any reason, why are you protecting them? You do not need the categories.

Anybody who attacks somebody else in this country should feel the full force of the law. Anybody who gets into a bar room brawl and chooses to get into an argument with a neighbour is walking into it with their eyes wide open. The cases we have heard described are of people walking along the street and simply because of the way they walk, the way they wear their hair or the fact that they may be different from us, you are condoning people leaping out of a car and beating them to a pulp.

[Some hon. members]

Oh, no.

[Carolyn Parrish, Liberal, Mississauga West, ON]

I am sorry, I have been sitting here all evening listening to you stretch a bill-

[The Speaker]

Order. Forgive me for interrupting, but I want the hon. member to please address the Chair.

[Carolyn Parrish, Liberal, Mississauga West, ON]

I have been listening to a stretching of the truth all evening. I have been listening to them talk about a simple two-word expression, about opening a Pandora's box to the world, that in Canada we will be condoning all kinds of perversions.

I am a Roman Catholic. I come from a Polish Catholic Church, and one cannot get much stricter than that. The priest in my church said to me one day, "What about this C-41?" I said "I'm going to send you a copy of the bill, and you call me if you have any problems with it". I have never received a phone call. There are over 10,000 families in that church who listen to that priest and who form opinions based on his learned judgment.

I have had church groups in my area send me profoundly disgusting pieces of literature because members of Parliament have sent them letters stirring them all up with false information.

I am standing here in the House and am very proud to be supporting C-41. I am remembering the prejudice my mother went through and the prejudice I have experienced on very minor occasions. I am hoping that everything we do in this House will protect all children and adults from that same sort of prejudice.

[Elwin Hermanson, Reform, Kindersley—Lloydminster, SK]

Mr. Speaker, I have been listening with great patience to the debate unfold this evening. I have my speaking points here. As a matter of fact I even have the Liberal speaking points for Bill C-41, their strategy to try to win the debate and to out-talk the opposition. I have heard the arguments of all the lawyers on both sides of the House and on both sides of the issue. If anything, it has given me more of a prejudice or a bias against lawyers, perhaps because I am a bit troubled with this bill.

I see in the Liberal speaking points that it states: "Bill C-41 will not be the subject of a free vote". It concerns me that the Liberal powers had to send a note to all of their members suggesting that they dare not suggest a free vote on this issue. That is very disconcerting.

I probably have had just about as much mail on this issue as I have had on gun control. They have been running neck and neck. I think actually the gun control issue won the day, but hundreds of letters have poured into my office expressing concern. Most of the letters were handwritten or typed. Very few letters were duplicated, photocopied or photostatted. A lot of the letters expressed serious concerns about C-41. Unfortunately, it all bore down on this particular portion that deals with the hate section. This bill is rather large and I am sure there are a lot more weaknesses in this bill than just the area we are discussing in this section of report stage.

I want to talk a little bit about the whole process of hate, bias, and prejudice. Raised out in the prairies, I was taught that we were to love our enemies. I was taught that hate was wrong. I believe with all my heart that hate is wrong. It is very difficult to know when you are loved or hated. You cannot always tell. Mr. Speaker, when you look at me I do not sense that you hate me. I expect you do not, and I assure you I do not hate you. Perhaps I would and I was hiding it. This bill attempts to play god by looking into people's heads and deciding whether or not they hate and whether or not the crime they committed was based on their hate, prejudice or bias. The words prejudice and bias concern me even more than the word hate in this legislation.

A crime is a crime. If someone commits an assault against me it is a criminal action and the Criminal Code allows the justice system to deal with that action. Whether that person hates me or not, it is a crime and needs to be dealt with.

What is morality and what is immorality? That is very difficult to determine. What if somebody knocks me on the head because they want to see if I have some money in my wallet? That is a crime, an assault. It is immoral because that person wants the money in my wallet. That is just as immoral as if the person hated me because I am white or because I am a heterosexual.

It is wrong. There are laws in place to deal with that offence, whether the person is committing an immoral act of knocking me over the head to commit a theft of my money or whether he is knocking me over the head because he hates me for some reason. Put forward in the bill is my gender, my sexual preference, my physical disability if I should have any. It is a crime and our Criminal Code has to deal with crimes because they are crimes, not because of who committed them or why they were committed. If it is wrong, it is wrong.

The bill is causing great division and great concern that our justice system will begin to look into people's heads and convict them based on playing the role of god in determining whether or not they hate, are prejudiced or biased. That is wrong. That is why the legislation is wrong and it should be defeated.

The Holocaust was a hateful, terrible blight on human history. It was wrong and all the perpetrators should have been brought to justice for that terrible atrocity against humanity. It was wrong. It was criminal. It was hateful.

If someone kicks, beats or attacks a person because they are not white, that is wrong. There are provisions in the Criminal Code already to deal with that hateful, wrong crime and I applaud that. If a person is attacked for some other reason other than those on the short list in Bill C-41, it is just as wrong and needs to be punished just as severely.

This follows along the lines of the Charlottetown accord where winners and losers were picked. One group is especially set aside and included in the legislation. Somehow it is given more pre-eminence by the judicial system. Those who are not on the list are nobodys. They are not nearly as important. The justice system needs to deal fairly with criminal acts. So what if it was theft? Let us just give a light sentence; it was not a hate crime. That thinking is wrong. This legislation is wrong and should be defeated. It does not need to be passed in this form.

I have biases and prejudices and I do not make apologies for those. Some are positive biases and some may be considered to be negative biases. I have a negative bias toward the Liberal Party because of the legislation it put forward. I do not hate Liberals but I have a bias against them and that is why I did not run as a Liberal. That is fair and just. There is nothing wrong with that. I have a bias in favour of my wife. That is why I married her. I thought she was wonderful. I see other people I would never want to be married to. I may have a bias against them but I do not hate them. That is not a criminal action.

If this bill were passed, who knows how the courts might interpret the legislation? It is rather frightening because the bill is not just talking about assaults. It is talking about all criminal actions.

I could talk about a lot of issues but before my time runs out, I want to talk about whether laws like this create solutions or whether they exacerbate the problem.

There is another category of people who are not looked upon very highly. I happen to be one of them. That is the category we all fit into on these benches, the category of politicians. Politicians are not included in this legislation. I know all of us have heard people say that they should take all politicians, put them in a boat, take them to the middle of the Atlantic Ocean and sink the thing.

That is terrible. I would be one of them. I would be sunk. That could be considered hateful and wrong. So what should we do? Should we include politicians in this legislation as well? Is that going to solve the problem? Will people suddenly think we are wonderful because we put a law in place that says you must not say that politicians should be put in a boat, sailed out to the middle of the ocean and sunk? That would exacerbate the problem. People would say: "Aha, we were right. They should be put in a boat, taken to the middle of the ocean and sunk". This is creating a worse problem because it is bringing these groups into prominence.

In summation, let me give an example. This House wants to pass a bill that will give MPs a special pension. Is that not wonderful, a special law just for MPs. That is going to endear us to the public, is it not? It is far richer than any pension in the private sector. Is that going to make people love us more? No, it will do the opposite. People are going to say: "Those politicians, they have to have a special pension plan just for them. They have to have special laws just for them. They want to be above the common people. They need special consideration". People then begin to have negative feelings. They have biases and prejudices, perhaps even hatred against politicians. That is wrong.

The philosophy behind this bill is wrong. It needs to be defeated and I will be voting against it.

[Peter Milliken, Liberal, Parliamentary Secretary to Leader of the Government in the House of Commons]

Mr. Speaker, I was not going to participate tonight. However, having listened to the very provocative comments, I thought it was time to once again attempt to set the record straight for the members

of the Reform Party who seem to have trouble reading very plain English.

Reform Party members in the course of their remarks tonight have totally misrepresented the effect of the proposed amendments to section 718.2 on page 8 of this bill.

[Art Hanger, Reform, Calgary Northeast, AB]

Is the member the only one who can interpret it?

[Peter Milliken, Liberal, Kingston and the Islands, ON]

I am going to interpret it. I am going to tell the hon. member what it means with the hope I can get it through his head. This seems to have been a real problem tonight.

The hon. member for Kindersley-Lloydminster said people would be convicted because of their hatred which is totally false. There is nothing in this bill dealing with hatred that changes the rules in respect of hatred. It does in respect of sentence, not in respect of the commission of an offence. There is a significant difference in law between those two.

A person will be convicted on the basis of the law as it stands. There is no change in the provisions in this act respecting hatred and conviction. A person is convicted of an offence against the law as it stands. This bill makes the sentence different from what it would otherwise be.

There is quite a difference between conviction and sentence. Sentence follows conviction; it does not precede it. A person does not get sentenced until he or she is convicted. A person must be convicted and will not be convicted under this law in any way which is different from that under the existing law. The new law will provide for a different sentence after conviction based on hate, if that is judged to be the basis of the crime.

The hon. member for Fraser Valley West went further in his remarks. He suggested this was going to change things and give all kinds of protection to pedophiles and other serious offenders. Mr. Speaker, I invite you to find that in this section of the act or indeed in this whole bill. Where is there any protection for anyone? This increases the severity of the sentence. That is not protection but increased offence and increased penalty. There is no change here that lets people off. It increases penalties for offences.

It says if you discriminate against someone based on sexual orientation you will get a harsher penalty. It does not say that persons who commit sexual offences get lighter penalties. That is what the hon. member for Fraser Valley West said in his speech. I have never heard such rubbish in my life. It is totally false, misleading and wrong. He should be ashamed to have made such a stupid comment.

We have heard dozens of them tonight, gross misrepresentations of this bill. I hear them in here and I get them in letters from constituents, particularly from British Columbia. They come floating into my office obviously stirred up by members of the Reform Party going out there and spouting this nonsense to their electors. Nothing could be further from the truth. This just is not right.

This bill does not do anything like what is being suggested in this House. All it deals with is sentencing. A person is convicted under the current law and then is sentenced. This provides a slightly heavier penalty for those who commit hate offences. That is all this does. This is not a case of revamping the law in relation to any minority groups. It provides for a stiffer penalty. What is wrong with that?

[Art Hanger, Reform, Calgary Northeast, AB]

It is already in place.

[Peter Milliken, Liberal, Kingston and the Islands, ON]

If it is already in place, why are these minority groups crying out for this protection? They are saying people are beating them up with impunity. That is why. They are getting away with it or they get light sentences. This is exactly what they say.

Minority groups came to the committee. The hon. member was on the committee as far as I know. I was not, but I heard about it in the media. They cried out for help saying that judges do not believe they are being beaten up just because they are members of these minority groups. Judges give a light sentence as though it were a normal case of assault that just happened on the street. In fact minority groups are of the view, and this view is widely shared by members of this party, that gangs are going around looking for members of minority groups to beat them up.

[Art Hanger, Reform, Calgary Northeast, AB]

Deal with the gangs.

[Peter Milliken, Liberal, Kingston and the Islands, ON]

That is what this bill is for. It will put them in prison. They will get a longer sentence if they have committed this kind of offence.

Why would members opposite take such exception to this? Who are they trying to protect by fighting this bill? The thugs who go about beating up these people. That is who they are trying to protect. Why do they have any interest in protecting those people? Surely they should be ashamed of protecting those kinds of people.

A little while ago I had reference to the fact that I represented a lot of people in prison in Kingston. I do and I am proud to represent them, but I do not expect that they would get lighter sentences because they go beating people up. I expect that they get punished for it.

This bill only asks that in taking into account what sentence is appropriate a judge consider certain aggravating circumstances. One of those aggravating circumstances is stated to be evidence that the offence was motivated by bias, prejudice or hate based on a number of factors. What could possibly be wrong with that?

I can understand an argument that says we should have equality of treatment. An assault is an assault is an assault. If somebody gets bumped on the head whether it is because the person is out to beat him up because he is black, gay, Catholic,

Jewish, or whatever, okay, maybe that should not be treated differently. I understand that argument and that appears to be the argument Reform Party members are advancing although they are doing it in the most cumbersome fashion imaginable. They are putting all kinds of other things in the bill.

If that is the only argument, surely it is not unreasonable to have passed a bill that does not specify a minimum offence, that does not specify that the penalty must be heavier but does provide that in considering the sentence to be given, the judge must take that factor into account.

This has nothing to do with juries. This is a matter of sentencing which is in the exclusive purview of a judge under our system. Juries will not be deciding sentences for criminals based on this section. The hon. member for Fraser Valley West in his remarks implicated juries in the whole thing, which again is a gross distortion of the facts.

I am really having trouble understanding how it is that members of this House could possibly misconstrue this bill. This is an extremely minor change in the law. It has nothing to do with the commission of offences. It only has to do with penalties.

One of my colleagues got a call from a constituent about this one night asking why he was supporting this bill. He made it very clear by saying: "Why would I not? Unless you are raising a bunch of gay bashers in your house you will not have any worry about this bill either. It will not have anything to do with you". He was absolutely right. The only people who will be affected by the bill are the thugs who are running around communities beating up people. If those are the people Reform Party members are defending, I say to them that they should be ashamed of themselves.

I am not surprised and I think it appropriate to read something more from the little book of reform. One can derive some basis for the thoughts of members of the Reform Party on this issue when one hears their views on certain social issues. I would like to read some now.

The hon. member for Yorkton-Melville had better be careful; he is in this book too. I want to read a quote from the hon. member for New Westminster-Burnaby, that enlightened patriarch of Canada's social system who said: "Old age security is welfare for the aged". Those are words of wisdom. That is what he said. Imagine.

We have the hon. member for Beaver River who is frequently quoted as an authority on this kind of subject. She said: "We feel that medicare is for the sick and not for the poor".

Then of course we have the hon. member for Capilano-Howe Sound, also well known as the father and architect of Canada's social programs, who said: "Having programs in support of single mothers causes mothers to be single and need support". My goodness. De profundis, Mr. Speaker.

[Some hon. members]

Oh, oh.

[Peter Milliken, Liberal, Kingston and the Islands, ON]

I have more. I can see, Mr. Speaker, that they are a little overwrought.

[Jay Hill, Reform, Prince George—Peace River, BC]

Mr. Speaker, despite the very late hour I will try to return a little sanity to the debate.

Bill C-41, the sentencing bill before us, has some fundamental flaws. It seems the drafters could not decide what is the real purpose of sentencing. Should we base the prison term on the seriousness of the crime or the identity of the victim? Are alternative measures desirable because our jails are full or because it is more likely that criminals in community service programs are less likely to reoffend?

Certainly a structured program in open custody may be a preferable alternative to incarceration for a first time offender, especially if it is more for a minor property offence and genuine remorse is shown.

Is it appropriate for repeat offenders whether against property or people? Section 717 leaves alternative measures wide open. There are no limitations on which types of crime should be excluded. If it is primarily intended to empty our jails of the people who fail to pay their fines then say so. If it is supposed to provide an alternative for first time offenders who do not belong with hardened criminals then say so, but do not leave it wide open.

Who gets to decide which self-admitted criminal will benefit from alternative measures? In section 717(b) the bill only says a person. This means someone other than a judge may decide which criminals avoid court and a criminal conviction.

Why is the government reluctant to exclude habitual or violent offenders from alternative measures? Is it afraid of a charter challenge by murderers who would claim that their rights are being violated? If they are denied alternative measures, will lawyers try to tie up the courts with appeals and challenges to any decision to proceed in the courts?

If the government does not have the courage to restrict eligibility for alternative measures perhaps we must reconsider whether alternative measures should be available at all. As legislators we have a responsibility to society to make the tough decisions about which types of crime or offenders should be eligible.

A condition of people's eligibility under section 717 is admitting to their crime. However, after admitting to an offence, they are henceforth referred to as persons alleged to have committed an offence. There is no trial. They are never convicted of a crime. They are not called an offender and therefore have no criminal record. Furthermore their admission of guilt cannot be used against them in any future court proceedings. Alternative measures represent the ultimate plea bargaining dream for lawyers. Now they can admit to a crime, there is no conviction, and the records are buried after two years.

I quote from section 717.1:

-regardless of the degree of their compliance with the terms and conditions of the alternative measures.

Something is very wrong with the sentencing bill. Section 717 needs to be fixed or struck.

Another seriously flawed section is 718 which outlines the purposes and principles of sentencing. Noticeably absent from the list is the concept of punishment. For example, under section 718(a) one objective is: "to denounce unlawful conduct". What is that supposed to mean? Breaking the law is not nice? Why do we not say that one objective is to punish unlawful conduct?

Under section 718(b) the objective is: "to deter the offender and other persons from committing offences". I find it encouraging that the government considers alternative measures such as raking leaves at the local park deterrents. At the same time it totally denies the deterrent value of capital punishment in the case of first degree murder. Which would give a person greater pause: the prospect of three square meals a day, leisure time and the opportunity to pursue a university degree behind bars, or the death penalty?

The objective of section 718(d) is: "to assist in rehabilitating offenders", which represents a clear indictment of our rehabilitation record. Why not simply say to rehabilitate offenders? Why qualify it? If we admit that they are not rehabilitated, that incarceration alone is not working and that we know they are going to reoffend, why are we letting them out? Is that consistent with public safety?

The drafters of the bill failed to realize that incarceration by itself does not punish or rehabilitate people. Likewise acknowledgement of one's actions is not the same thing as guilt or remorse. Let us face it, the real reason we are trying alternative measures is that the government is finally willing to admit the current prison system is not working. If the government can prove recidivism rates are lower with community service and open custody, why are the same principles of work and restitution to society not being applied during incarceration? What is wrong with making able bodied prisoners work?

The new Ontario government is contemplating workfare for welfare recipients. The bill advocates labour in the community, but the government is afraid it will be denying the rights of hardened criminals if they have to work to help compensate for their room and board in prison. Perfecting their golf swing or learning new safe cracking techniques from fellow inmates is hardly constructive or liable to contribute to rehabilitation or reintegration.

Why can we advocate labour for people in open custody but not for those in closed custody? Society should not fear the concept of punishment. Instead we seem to extend more rights to criminals than to victims. At last count Clifford Olsen had launched 32 frivolous lawsuits at taxpayers' expense. Instead of helping to support the cost of their upkeep and learning the habit of working every day, other felons like him go on strike over the quality of their food.

In section 718.2 the government completely departs from the previous implicit admission that our jails are crowded and incarceration as now practised is not working. Suddenly the government advocates putting people behind bars for longer periods, not based on the seriousness of the crime but on the physical attributes or the sexual preferences of the victim.

I find it ironic that in section 717 the government refuses to list which crimes are eligible for alternative measures, leaving it open to anything from car theft to murder. However when we turn to section 718.2 suddenly the government feels the need to create a list. If the aggravating and mitigating circumstances apply to everyone equally why is there a list of special considerations?

After letters opposing the new gun control legislation, the second highest number of letters I have received from my constituents concern the inclusion of the undefined phrase sexual orientation in the list of aggravating circumstances found in the bill. They do not want special rights extended to Canadians based on their sexual preferences, and that is what section 718.2 appears to do.

If the government caves in to special interest groups and political correctness then it should call a spade a spade.

By including the phrase sexual orientation the government is trying to deter gay bashing by heterosexuals. By leaving it undefined it can also include other sexual orientations such as pedophilia and necrophilia.

Liberal colleagues across the way will say that pedophilia is a crime in Canada. Yes, it is. A recent court decision said that sodomy with a 14-year-old was legal, but under section 718.2 if someone punches a pedophile he could receive a harsher sentence even though pedophilia is illegal under Canada's laws.

Canadians want equality. Sexual orientation has been the lightning rod for Bill C-41. Even if it were defined or removed, the fundamental premise of section 718.2 is flawed. Canadians

should be equal before the law and section 718.2 must be deleted in its entirety.

If we change a basic sentence in principle and emphasize the identity of the victim more than the severity of the crime, we will truly be on that slippery slope. The rule of law requires proof, not conjecture. Regrettably prejudice exists in Canada, but creating false inequalities through arbitrary criminal sentencing will hardly address the problem. If anything, it will increase intolerance by creating the justifiable perception that some groups are getting preferential treatment under the law.

In conclusion, justice is supposed to be blind. We all grew up with the image of the blindfolded woman holding the scales. Why do criminals not receive the same sentence for the same crime based on the seriousness of the offence, no matter what group the victim belongs to? Are some Canadian lives worth more or less than others? Prejudice, bias and hatred must be addressed through other mechanisms. It is not the role of the courts to implement the government's social engineering agenda.

[The Speaker]

The hon. member for Halifax West will have the floor next. I would point out that it is 11:26 p.m. and the hon. member will probably not be concluding today. He will have the floor tomorrow.

[Geoff Regan, Liberal, Halifax West, NS]

Mr. Speaker, members of the Reform Party made statements about lawyers and how terrible it is that so many lawyers in the country will get involved in the issue in various ways. Sometimes in this job it helps to have some understanding of the law and some training in law because we are dealing with interpretations. Reform members are telling us how laws will or will not be interpreted while at the same time they are claiming they have no understanding of legal matters.

The law is all about making distinctions. The penalties differ according to different elements of a crime. If there are additional elements in an offence then the penalties are different. For example, common assault is not considered in the same way. The penalty is not the same as an assault causing bodily harm because there are additional elements that require a stiffer or more serious response.

The reason the Criminal Code has so many sections is that we are making distinctions and there are many different elements and different kinds of crimes. When we are talking about an attack on a group there is a distinction. An attack of any kind is an important crime. It is important that there be strong sentences against attacks of whatever kind. When people are attacked because they belong to a group, whether it is a religious group or whatever, it is a kind of terrorism against the group. It is an additional element that requires an additional response. It is a little more serious. Both are serious but this is a little more so. It is an additional element and that distinction must be made.

I recently read the Supreme Court of Canada decision in the Egan and Nesbitt case which deals with the issue of sexual orientation. There are quite a number of different opinions but they all used the phrase sexual orientation. I do not know what members here or what lawyers in the country claim to be better lawyers and to know more about the law than the Supreme Court of Canada. However they are comfortable using that phrase and express no concern or no hesitation in doing so. That is the first point I wanted to make.

The second point is this section does not condone any kind of activity. However, the government has introduced an amendment which provides that nothing in the bill will change or make something not a crime or condone any activity that is a crime at present. Therefore if pedophilia is a crime now it will still be a crime. If necrophilia is a crime it will still be a crime. Those things will not change. I cannot see why they are so concerned about this provision.

Too often these kind of offences have received lighter sentences than they should and there are no bases in these cases for appeal. There must be a basis for an appeal and this provision provides for that. They must be treated seriously and the bill provides that. I recommend support.