Debates of June 13th, 1995

Criminal Code

[Pierrette Venne, Bloc, Saint-Hubert, QC]

moved:

Motion No. 9

That Bill C-41, in Clause 6, be amended in the English version, by replacing line 30, on page 8, with the following:

"vated by prejudice or hate based on".

[Svend Robinson, NDP, Burnaby—Kingsway, BC]

moved:

Motion No. 10

That Bill C-41, in Clause 6, be amended by replacing line 31, on page 8, with the following:

"the actual or perceived race, national or ethnic origin, lan-".

[Tom Wappel, Liberal, Scarborough West, ON]

moved:

Motion No. 11

That Bill C-41, in Clause 6, be amended by replacing lines 33 and 34, on page 8, with the following:

"or physical disability, heterosexuality, homosexuality or bisexuality of the victim, or".

Motion No. 12

That Bill C-41, in Clause 6, be amended: a ) by replacing lines 33 and 34, on page 8, with the following:

"or physical disability, sexuality of the victim, or"; and b ) by adding after line 15, at page 9, the following:

"(2) For the purposes of this section, "sexuality" means, only, heterosexuality, homosexuality, or bisexuality and, for greater certainty, does not include a preference towards any sexual act or activity that would constitute an offence under this Act."

[Roseanne Skoke, Liberal, Central Nova, NS]

moved:

Motion No. 13

That Bill C-41, in Clause 6, be amended by replacing line 33, on page 8, with the following:

"or physical disability".

[Tom Wappel, Liberal, Scarborough West, ON]

moved

Motion No. 14

That Bill C-41, in Clause 6, be amended in the English version, by replacing line 33, on page 8, with the following:

"or physical disability, sexual orientation,".

[Pierrette Venne, Bloc, Saint-Hubert, QC]

moved:

Motion No. 15

That Bill C-41, in Clause 6, be amended in the French version, by replacing line 40, on page 33, with the following:

"garde d'enfant auxquels s'expose une".

[Paul Szabo, Liberal, Mississauga South, ON]

moved:

Motion No. 16

That Bill C-41, in Clause 6, be amended by adding after line 3 on page 8, the following:

"(i.1) evidence that the offender committed an indictable offence that consisted of a physical or sexual assault on or harm to the person of the offender's spouse or common law spouse or an attempt or threat to carry out such an offence; or".

[Allan Rock, Liberal, Minister of Justice and Attorney General of Canada]

moved:

Motion No. 17

That Bill C-41, in Clause 6, be amended by replacing lines 19 and 20, on page 55, with the following:

"of a legislature."

[Dan McTeague, Liberal, Ontario, ON]

Madam Speaker, it is a privilege this evening to speak to Motions Nos. 7 and 8. We are dealing with a very controversial bill. It is controversial because many Canadians have expressed concern about the intent of the bill.

[Pierrette Venne, Bloc, Saint-Hubert, QC]

Pardon me, Madam Speaker, but let me explain before the hon. member goes any further with his remarks. I do not know if I should discuss this with you right now, but I have a problem. As I understand it, based on the Speaker's decision, my Motion No. 4 will be voted on at the same time as Motion No. 3, which deals with a completely different subject. Mine is about the French language, and the hon. member's about alternative measures. There really is no connection.

[The Acting Speaker (Mrs. Maheu)]

The Speaker has decided in this case that, if Motion No. 3 is adopted, it will not be necessary to vote on Motion No. 4. In fact, both votes have been deferred. As a result of the vote on Motion No. 3 being deferred, the vote on Motion No. 4 was automatically deferred.

Does this answer your question? The vote on Motion No. 4 has been deferred along with that on Motion No. 3.

[Pierrette Venne, Bloc, Saint-Hubert, QC]

Very well.

[François Langlois, Bloc, Bellechasse, QC]

Madam Speaker, on a further point of clarification, just to be perfectly clear, before the hon. member for Ontario resumes his speech, which I will listen to with great interest.

My understanding was that the vote on the motion put forward by the hon. member for Saint-Hubert was deferred till the end. I can understand that. But if the motion put forward by our colleague, the hon. member for Crowfoot, is defeated, we will have to vote on Motion No. 4 in the name of the hon. member for Saint-Hubert in any case, will we not?

[The Acting Speaker (Mrs. Maheu)]

You could approach the table. The Speaker's decision is clear. If Motion No. 3 is defeated, Motion No. 4 will be voted on. It was included in Group No. 1 only for the purpose of debate.

[Dan McTeague, Liberal, Ontario, ON]

Madam Speaker, I know that I have only 10 minutes to address two issues. I hope that I will be able to do so in so little time, and if I am, that will be quite an accomplishment.

I believe generally in the principle of equality. I believe that Bill C-41 is a good bill in general. It deals with substantive matters of sentencing and matters that we treated openly in the campaign.

However, the most troubling part of the bill deals with section 718.2(a)(i). I find it troubling because this section of the bill, which is a very small paragraph in an omnibus bill, attempts to treat the whole matter of hatred in a very superficial way.

This section has been presented as a means toward combating hate crimes by toughening sentences where it was not the case in the past. It gives members the impression that hate crimes are somehow going unaddressed in terms of our legal ability to respond effectively to the rise in crime and the incidence of hate crime.

The Canadian Bar Association before the justice committee made it extremely clear that without exception there were no examples where one could prove that people who committed hate crimes, whether against an individual or a person belonging to a group of individuals, did not have the book not thrown at them. It is with regret that I suggest the piece of legislation in section 718.2 is nothing less than redundant.

The level of support for the concern about the bill falls into two areas. My fellow colleagues from the government side will be able to speak about their concerns with reference to sexual orientation. My concern is of a much grander nature. It deals with the fact that we are saying in the country and in the bill that hatred is only significant when the characteristic of the individual is taken into account. I would submit that misses the very point on which hate crimes ought to be based.

Hatred is hatred. It is no more or less significant given who it is directed against. It should be a principle not only of Parliament but a fundamental principle of Canadians in general that hatred is something we should repudiate at every turn.

I thought I would at some point be able to bring forward Motions Nos. 6 and 7 to the justice committee. One of the motions would delete the clause after the words hate, biased and prejudiced. Those words make it so that hatred is more significant if it is only based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation or any other similar factor. I do not know what any other similar factor is. Perhaps I could have an appropriate explanation of exactly what that means, but I say with some certainty that a judge reading any other similar factor would have difficulty trying to understand just what is meant.

I have looked to various applications of the legislation and where it will have its greatest impact. If we are serious about changing hate crimes, particularly as our red book suggested in terms of hate propaganda, ought we not to be correcting sections 318 to 320 of the Criminal Code rather than treating hatred in a rather cavalier fashion, in a rather superfluous or superficial fashion under an omnibus bill on sentencing?

If I had been given the opportunity to speak or provide some amendments based on good advice to the government during the committee period, I would have put forward the concern some hon. colleagues have expressed that other forms of hatred manifested against certain individuals would not be covered under the legislation.

I presented to the hon. member for Portneuf the prospect of hate based on language. I am pleased to see that it is here. Unfortunately I had to do that indirectly.

One of the things I noticed is that my position and reservations on this bill were expressed and reinforced by the Barreau du Québec. According to the Barreau, Canadians do not want a restrictive two-tier justice system that protects only some segments of our society.

On the other hand, some people have argued that there is no indication that the courts have been lenient with offenders motivated by hatred for these segments, groups or individuals in our society. In their opinion, as judges already have considerable latitude in the sentencing process, they often use this latitude to impose tough sentences for crimes they deem detrimental to society.

According to the amendment proposed by the Barreau, if the evidence submitted to the court shows that the offence was motivated by prejudice, the judge may feel that the aggravating circumstances surrounding the crime call for a tougher sentence.

Although I respect the Barreau's position, I am quoting these comments for the hon. members opposite, especially those from the Bloc Quebecois, because the Barreau du Québec, which represents all lawyers in the province, said that what was needed was a general rather than specific principle.

I am extremely concerned that the legislation, in its attempt to address hate crimes, will leave people out. I am not sure what motivates one to write legislation such as this, particularly section 718. However, if it has anything to do with political correctness, might I suggest that in exchange for political correctness we respond to actual legal need? Hatred is a very serious problem that ought to be treated more seriously in more appropriate legislation.

How serious can we be about nibbling around the edges? I am concerned about ensuring that we have a fair system of justice for all. The legislation almost ensures that in Canada we no longer can claim to have a justice system for all.

We are saying that it is more important for some hatreds to be treated more significantly if the person who happens to be the unfortunate victim of hatred is part of the listed group. I have cited language. I could also cite the physical appearance of people. The hon. member for Wild Rose referred to fat people.

This is a very political environment. Perhaps we could talk about hatred based on political considerations, people who hold political views that are different from others and who have been the subject of hate. How in this bill, how in this amendment, are those people going to find equal protection before and under the law?

The charter says that we are supposed to provide equality for all individuals. My reading of this section suggests that only some people, those who happen to constitute a part of this list, will be protected.

Many other concerns have been raised in the past about whether the legislation will be able to in some way thwart or deter someone from committing a hate crime. Those who are filled with hatred do not read omnibus bills on sentencing to find out what their punishment will be.

What they will know is that in every single instance without exception the justices and the good people of this nation who prosecute these issues have been able to find without exception that when someone commits a crime based on hate it is always treated as an aggravating circumstance. If this list forms the basis under which the law would find an aggravating circumstance, those left out could be considered crimes committed for which the judge would find at the point of sentencing to be of a mitigating factor.

We need equality of treatment when it comes to hatred. We need to make sure that we use the proper instruments to protect it and to protect those who have been its victims in the past and its victims in the future.

Not much more can be made more true than the fact that individuals from coast to coast expect from Parliament fairness and equality before the law. Bill C-41 is a long bill. It is an exhaustive bill. We must treat hatred in its proper perspective.

I urge all members to support my motions, justice for all.

[Pierrette Venne, Bloc, Saint-Hubert, QC]

Madam Speaker, the motions on clause 718.2 of Bill C-41 represent the majority of the motions to amend tabled at report stage. Most deal with the question of whether or not the expression "sexual orientation" should be included in the provisions which relate to the aggravating circumstances to be considered when a sentence is imposed.

Motion No. 5, tabled by the hon. member for Crowfoot, is the most drastic one, since it proposes to completely eliminate

clause 718.2 in the bill. In so doing, the Reform Party would render the legislation meaningless, since it would abolish the basic principles and objectives of sentencing.

The principles stated in clause 718, which underlie the bill, are a step in the right direction. Indeed, we can only support a measure which seeks to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing appropriate sanctions.

Moreover, the alternative measures provided in clause 717 regarding some offenders, that is the penalties other than incarceration and probation, are innovative measures which will result in fewer offenders being sent to jail, while also putting the emphasis on rehabilitation rather than incarceration.

Some motions, including those of the hon. member for Scarborough West, seek to introduce a comprehensive definition of the expression "sexual orientation" in clause 718.2 of the bill. The member actually managed to table several motions to amend which are essentially variations on the same theme, in the hope that one of them will somehow get through.

The debate on the real issues of Bill C-41 was sidetracked from the very beginning. Indeed, since the legislation was tabled, the debate has focused on the sensitive issue of homosexual rights. Under aggravating circumstances, the bill provides a list of prejudices motivating hate crimes, including the sexual orientation of the victim.

The judge must consider a hate motivated crime as an aggravating circumstance at the time of sentencing. The debate has been sidetracked both by the defenders of homosexuals' right to protection and by the extreme right that wants the bill's provision regarding aggravating circumstances to be dropped. I have received thousands of letters asking me to vote against Bill C-41 because it contains the phrase "sexual orientation". Our offices were flooded with these form letters. They merely reflected the opinion of a ill-informed minority.

Those who signed these letters actually wanted us to scrap a 75 page bill, containing a hundred clauses and representing a complete reform of that part of the Criminal Code that deals with sentencing, because it contained two words too many. Let us keep in mind that Bill C-41 does not create new rights. It is a sentencing bill, and therefore sets out parameters by which judges must be guided in arriving at sentences. Clause 718.2 in particular concerns only an accused found guilty and the criteria that apply to his sentence.

It is not the purpose of this clause to create rights for the groups listed therein. The rights of individuals are protected under the Constitution and other legislation on the protection of human rights. Bill C-41 is not a new charter of rights and freedoms, as several interested groups would have us believe. When a bill contains the term "sexual orientation", the meaning of the term raises many questions. What does it really mean? How should its meaning be interpreted?

In the Egan case, the federal court seems to indicate that a sexual tendency or orientation can be heterosexual, homosexual or bisexual. This case made a challenge under section 15 of the Canadian Charter of Rights and Freedoms. The court concluded that, although the Supreme Court has never issued an opinion on the issue, the fact that sexual tendencies can be invoked as motives constituting discrimination such as those prohibited under subsection 15(1) had become a matter of settled law.

On June 30, 1993, a little while after the Egan decision, the Supreme Court stated in the Ward decision that sexual orientation is an innate or unchangeable characteristic. This case involved discrimination against refugees and the protection of refugees. The Supreme Court accepted as a category persons who fear persecution because of gender, linguistic backgrounds and sexual orientation.

I would like to mention in passing that the Bloc Quebecois proposed an amendment regarding the linguistic traits of victims in committee, which was accepted. This amendment is in line with the position taken by the Supreme Court in the Ward case. But, you might ask, should we not clearly define the term "sexual orientation"? Since political correctness has come into style, the names of several minority groups have changed considerably.

The blind have become the visually impaired; the deaf, the hearing impaired; the mentally ill are now mentally handicapped.

Since language changes constantly, the designation of homosexuals has changed as well. In the 19th century, this phenomenon was referred to as sexual inversion. In the 20th century, this term was replaced by the word homosexuality. Subsequently, we had the terms gay and lesbian. Not so long ago, people talked about sexual preference. Of course, the gay community soon dropped this term because it indicated a choice or characteristic acquired by the individual and not an innate characteristic.

Scientists are now trying to determine whether homosexuality is not only innate but genetically determined. In a scenario that may not be that far down the road, we may have individuals with male or female genetic characteristics, plus homosexual genetic characteristics that would influence the individual's behaviour and thus determine his or her future sexual orientation.

Some people maintain this is a nightmare scenario, especially those who flooded the fax machines on Parliament Hill with strong protests against Bill C-41. The mere term sexual orientation caused a wave of panic. Opponents of this legislation

simply want to throw out an entire bill on sentencing because it supposedly gives more rights to homosexuals, which is patently untrue. Crimes motivated by hate or prejudice have a profound impact on the victim. They differ from any other kind of crime. The victim, attacked because of the colour of his or her skin, because of his or her religion or because she is a woman, suffers far more than someone whose wallet is stolen. That is what clause 718.2 of the bill is all about.

I will not support Motions Nos. 5 to 17, inclusive, except, of course, for Motions Nos. 9 and 15.

[Roseanne Skoke, Liberal, Central Nova, NS]

Madam Speaker, I rise in the House to speak at report stage on Motions Nos. 6 and 13 proposing amendments to Bill C-41.

Bill C-41, and in particular section 718.2, has been vigorously promoted by the government and the media as the hate crime legislation.

Let me remind this honourable House that section 718.2 is not the operative hate crime provisions of the Criminal Code. Rather it is the purposes and principles of sentencing which must at all times reflect the fundamental values, principles and morals on which this great nation, Canada, has been founded.

Section 718.2, as drafted, is unacceptable. It does not reflect the principles and values of the majority of Canadians. The specific inclusion of the words sexual orientation gives legal recognition and legal status to a faction in society which is undermining and destroying Canadian values and Judeo-Christian morality.

Such a special recognition of sexual orientation in the Criminal Code is an overt condonation of the practices of homosexuality which is being imposed on all Canadians. Bill C-41 has the effect of legislating a morality that is not supported by Canadian and Judeo-Christian morals, values and principles.

To endorse or to include the words sexual orientation in any federal legislation would confer on homosexuals the ability to obtain special legal status, allow them to redefine the family, to enter into the realm of the sanctity of marriage, to adopt children, to infiltrate the curriculum of schools and to impose an alternative lifestyle on youth. All these demands are encroaching on and undermining the inherent and inviolable rights of family and the rights of the church.

The family unit is the basic institution of life and the solid foundation on which our forefathers have built this great nation. The protection of families, family life and family values must be a priority with this government. Families have inherent and inviolable rights. Families have existed before the church and families have existed before the state. The rights of the family must be preserved, safeguarded and protected by Parliament.

Why do I as a legislator continue to make reference to principles, values and morals when debating Bill C-41? It is because section 718.2 refers specifically to principles. In the words of the hon. justice minister before the justice committee on Bill C-41 on November 17, 1994-

[Svend Robinson, NDP, Burnaby—Kingsway, BC]

Madam Speaker, I would like to raise a point of order pursuant to Standing Order 18, which reads in part as follows:

No Member shall speak disrespectfully of the Sovereign, nor of any of the Royal Family, nor of the Governor General or the person administering the Government of Canada; nor use offensive words against either House, or against any member thereof.

As a gay man, the words spoken by the hon. member for Central Nova are deeply offensive, not just to me as an individual but to all gay men and lesbians in this country. To be accused of immorality-

[The Acting Speaker (Mrs. Maheu)]

I did not hear the hon. member refer to you as an individual. I stand corrected if she did.

[Roseanne Skoke, Liberal, Central Nova, NS]

In the justice committee on November 17, 1994 the justice minister stated:

But the second and I believe the more important reason for legislating is that one of the legitimate purposes of Parliament and of legislation is to allow the legislators to identify themselves with a principle, to take the lead and to show what the values are that guide us as a nation.

We may have different views on what those values are, but this bill reflects the values and views of this government in relation to this matter.

I beg to differ with our justice minister on this issue. With confidence I say that section 718.2 does not reflect the principles and values of the Canadian majority. As of June 6, 1995 this honourable House had received over 83,000 signatures on petitions directly related to the wording of sexual orientation. Since September 20, 1994 I have received in my office alone over 10,000 letters, faxes and telephone calls confirming the views, values, principles and morality of Canadian people.

The media can attest to the interest shown in Bill C-41 on the issues of principles, values and morals. Talk show hosts, radio, television, newspapers, magazines and all Canadians are talking about Bill C-41 and its serious implications. No more. Canadians are not prepared to silently acquiesce in legislative change which will affect their right to speech, right to expression, opinion and belief, the right to freedom of religion and most important, the right to practise all those freedoms openly without fear of intimidation, coercion or criminal sanction.

Section 718.2 is incorporated in the Criminal Code of Canada. Whether the question of the purpose of the criminal law is approached from a retributive or a utilitarian direction, it is important to understand that the fundamental nature of criminal

law sanctions is punitive. The criminal law and the criminal justice system constitute the end point on a continuum of informal and formal customs, beliefs and institutions of social control, the end point in terms of the ultimately coercive intervention of the state in the lives of its citizens.

Simply put, the criminal sanction of section 718.2 will ultimately operate to elevate the existing Canadian legal test of tolerance to a higher legal standard whereby Canadians are required not only to be tolerant of homosexuals and their chosen lifestyles, but they must condone, accept and endorse homosexuality as being natural and moral.

Canadians do not have to accept homosexuality as being natural and moral. Homosexuality is not natural; it is immoral. Homosexuality must not and should not be condoned.

[Réal Ménard, Bloc, Hochelaga—Maisonneuve, QC]

Madam Speaker, I rise on a point of order. Up to now, I have kept from interrupting my colleague for Central Nova. However-and I would like some guidance from the Chair-I contend that associating homosexuality with immorality strikes a blow at a large sector of society and is therefore unparliamentary. I would ask the member for Central Nova-

[The Acting Speaker (Mrs. Maheu)]

I am sorry, but that is a matter of debate.

[Réal Ménard, Bloc, Hochelaga—Maisonneuve, QC]

Is the word immoral acceptable, Madam Speaker?

[The Acting Speaker (Mrs. Maheu)]

These words are not directed at anyone in particular.

[Roseanne Skoke, Liberal, Central Nova, NS]

Madam Speaker, justice, law and morality are inseparable. In our country Canada, we cannot have laws unless our laws are just and moral.

The preamble to the Canadian Constitution set forth in the Constitution Act recognizes the supremacy of God and the rule of law. The recognition of the supremacy of God entrenches into the Constitution natural law. Therefore the laws of our country must not contravene natural law for to do so the laws would be ultra vires or unconstitutional.

A strict legal approach to section 718.2 will disclose that this section is seriously flawed and unconstitutional. There are many unanswered legal questions regarding section 718.2. The words hate, prejudice and bias are undefined. Hate is an emotion; bias and prejudice are beliefs. The charter guarantees freedom of conscience, expression, opinion, belief and religion.

In practicality, when the court employs section 718.2 in determining whether motivation is on the basis of hate, prejudice or bias as an aggravating factor, I ask this honourable House what legal test shall be applied? Is it an objective test or a subjective test? If it is subjective, whose subjectivity is applied, the subjectivity of the victim or the subjectivity of the accused?

If sexual orientation is included in the list of section 718.2, what is the operative legal definition of sexual orientation and how can one identify the sexual orientation of another? What legal test will be applied by the judge and will such a test be based on the actual or perceived sexual orientation of the victim? Where in Canadian law can an accused person be sentenced for a crime without having first been charged, tried and convicted of the said crime?

Section 718.2 is a double jeopardy provision of Bill C-41 which is unconstitutional. Its effect clearly sentences an individual for hate motivation without the individual having been charged under the hate crime provisions of the Criminal Code. This is unacceptable in Canada. It contravenes the charter guarantees of the right to be charged with an offence known in Canadian law and the right to be tried in accordance with the fundamental principles of justice.

Section 718.2 violates the equity sections of the charter, in particular section 15, which states that every Canadian is equal before and under the law. The list of factors provided for in section 718.2 creates an inequity in law which must not be tolerated. Since every Canadian is equal before and under the law, then a list of categories is unnecessary and restrictive.

The hon. member for Ontario has proposed an amendment to delete the list. I support Motions Nos. 7 and 8. I do not support the inclusion of the words sexual orientation in Bill C-41 or in any federal legislation. I ask this honourable House to support my position by voting in support of my specific amendment, Motion No. 13, which will specifically exclude the words sexual orientation from section 718.2.

I further challenge this honourable House to carefully consider section 718.2 and to examine its constitutional validity and its effect upon the charter guarantees afforded to all Canadians. Before this House is Motion No. 6, a general amendment to Bill C-41 which will delete section 718.2 in part and I ask for support from this honourable House.

In conclusion I cannot support any federal legislation that includes the words sexual orientation particularly in the Criminal Code of Canada. To do so would be to utilize a criminal sanction to afford special legal status to homosexuals and to give legal recognition to a faction in our society which is undermining and destroying our Canadian values, principles and morals.

Over the past 25 years Parliament has been encroaching upon and undermining the inherent and inviolable rights of the family, the right to life and the rights of the church. Section 718.2 is just another example of this.