Debates of Nov. 18th, 1998

Points Of Order

[The Speaker]

I am prepared to listen to the hon. member as long as he has pertinent information to this point of order. If the hon. member feels he could refer me to a particular case he might give a summary of the case in his own words and deposit the information on the table so I will have access to it.

[Greg Thompson, Progressive Conservative, Charlotte, NB]

Mr. Speaker, I will go through it as quickly as I can. It certainly speaks to the issue at hand. It is very specific.

One of the arguments raised by the House leader is this is a tax and not a levy. I want to step through here for the Canadian public. Mr. Speaker, I am sure that through your examination of this you have discovered some of this on your own, but to put it on the record I think is important.

A tax is generally defined as a compulsory contribution levied on a person by a government body with the intent to transfer resources from the private to the public sector. A tax is imposed to finance public sector goods and services and to redistribute income among different economic groups in society.

The issue of whether a charge imposed by a government is or is not a tax has been examined by the courts in relation to section 92(2) of the Constitution Act, 1867 in determining the status of various charges, some of them federal and some of them provincial.

Since pursuant to section 92(2) a province or the federal government may impose a direct but not an indirect tax, if the charge were an indirect charge it would be invalid.

The Supreme Court of Canada has examined this issue in the following cases and I will use the appendix of some of these cases to explain in more detail: the Agricultural Products Marketing Act, 1978; the Exported Natural Gas Act, 1982; Allard Contractors v Coquitlam, 1993; the Ontario Home Builders' Association v York Region Board of Education, 1996.

In the agricultural products case the Supreme Court of Canada held that marketing levies imposed by a marketing board were regulatory charges intended to deal with the expenses of the marketing board. The marketing levies were not a tax because they were not imposed to raise revenue for the public purse. The member for St. Paul's articulated this very clearly in her argument, that it is not moneys for the public purse.

In the Allard Contractor's case the Supreme Court of Canada held that a fee imposed by a municipality on companies engaged in the extraction of gravel was not a tax, as the fees raised were intended to be used to repair roads. The fee had a specific use. The key is specific use and because that was a specific use it was a valid regulatory charge.

In The Ontario Home Builders' Association case, the Supreme Court of Canada held that a charge imposed by school boards on land developers, which was intended to be used to fund the construction of new schools, was a regulatory charge and not a tax.

The Ontario Court of Appeal found that the probate fees levied by the province of Ontario were part of a regulatory scheme relating to the maintenance of the Ontario court. The levying of probate fees was part of a general revenue raising program and as such was not a tax.

In the natural gas tax case, the Supreme Court of Canada found that the charge in issue was intended to raise revenue for general public purposes and as such was a tax.

The result of these cases is that a levy imposed by a public body can be characterized as a regulatory charge and not a tax if the amounts received pursuant to the levy are to be used for a specific governmental service and the amount of the levy reasonably relates to the cost of providing that service. That was articulated very well by the member for St. Paul's in terms of what would be raised by this levy, where and how it would be spent, how much of it would be spent and what would happen if all the money were not spent.

The levy intended to be imposed pursuant to part two of Bill S-13 is a levy that is clearly intended to provide funds to defray the cost of providing the services and products referred to in section 5 of the proposed act. It is not intended that the levy provide revenue to be transferred to any public authority to be used for general public purposes. The levy is to be specifically applied toward the needs of the foundation.

The relationship between the levy and the expenses of the foundation is indicated in section 36(3) of the proposed act in that if the number of young persons in Canada who are smoking tobacco products declines to 5% or less in the fifth or the subsequent year of the foundation, the foundation may reduce or eliminate the levy imposed pursuant to section 36(1) of the proposed act for the particular year. It is to be presumed that the expenses of the foundation would decrease if there were fewer young persons in Canada smoking and as such the need for a levy to satisfy these expenses would be correspondingly reduced. That is articulated very clearly in the bill. It is my opinion that the levy to be imposed pursuant to part two of the proposed act is not a tax.

I have another two or three pages to go. In the interests of time I would like to table them.

[The Speaker]

This would be a proper way to do it. He can give the information to the page and I will personally take charge of it.

[Greg Thompson, Progressive Conservative, Charlotte, NB]

Mr. Speaker, I know we must speak to the technicalities of the bill. We are talking about 40,000 deaths per year in Canada because of smoking. We have to do everything in our power to address that issue.

I make a point that goes back to a precedent and I do not think it has been mentioned today. Canadian practice provides a precedent based on British cases. This proves it is possible for a ways and means resolution should it be deemed required to be moved to the bill post-second reading. Mr. Speaker, that is an option you should consider because that would allow the bill to be on the floor of the House of Commons and debated for its merits. Obviously that has to be part of your consideration.

I hope your ruling is based on the arguments and precedents we are hearing today. If your ruling is based on anything other than that I think it would be grossly unfair to this House. I do not think you will do that, but I want to put that on the record.

Looking at both sides of the House, we want to have the opportunity to discuss those because I know from time to time in the past rulings have come down in the House where technicalities or arguments have been used which were not based on what we have heard on the floor of the House. I hope when the ruling does come down it is on the merits of some of the arguments you have heard today.

I hope at the end of the day consideration is given to the bill and that we will have the opportunity to debate it on the floor of the House of Commons.

[Clifford Lincoln, Liberal, Lac-Saint-Louis, QC]

Mr. Speaker, I rise to back up the arguments of my colleague from St. Paul's and all the other members who have spoken in favour of the recognition of Bill S-13 as valid to be introduced in the House.

It is clear among all of us that a tax is a charge on the people. We agree with that. If a tax is a charge on the people then it must be preceded by a ways and means motion. We all agree with that. A ways and means motion must be introduced by a minister of the crown. A tax bill can originate only in the House of Commons. In one way or another tax revenues will form part of the general revenues of the government.

A levy is a very different thing. A levy is imposed to serve a particular beneficial industry purpose. The funds from the levy never form part of the revenues of the government. We need to find out whether the levy imposed on the tobacco industry in this case is a charge on the people and forms part of the revenue of government. If such is not the case, if it is not a charge on the people generally and does not form part of a revenue of government, it is a case for saying Bill S-13 constitutes the introduction and imposition of a levy on a particular industry and is valid for introduction in the House.

The bill is very clear. My colleague from Haldimand—Norfolk—Brant quoted section 36, saying there is a distinct imposition on a particular industry.

I refer to a the ruling by the Speaker of the Senate:

I have two things to do here. I do not have authority on constitutional law but I can look at the bill and compare it to precedents to find out whether it is valid for introduction or not as a levy.

What is within my authority, however, is examination of the bill in order to assess what it declares itself to be. I accepted the plain and ordinary meaning of its words and studied them to see if all the clauses relevant to the issue of the levy were internally consistent. I then measured the levy described in the bill against the criteria Erskine May sets out at pages 730-737 for identifying levies that are exempt from financial procedures governing the imposition of taxes.

With respect to the matter of the plain language of the bill, it speaks in terms of a levy rather than a tax. This is evident from part II of the bill. It is also clear that the levy is imposed upon the tobacco industry alone.

Therefore it is not a charge on the people. It is a charge on the tobacco industry. He states further:

The purpose of the levy, as stated in the bill, is to meet an industry purpose beneficial to it, although this industry purpose also has a public benefit. Clause 3 states categorically that the purpose of the bill is:

... to enable and assist the Canadian tobacco industry to carry out its publicly-stated objective of reducing the use of tobacco products by young persons throughout Canada.

Consequently, with respect to the language of the bill I must accept that what is proposed is a levy, not a tax.

Then he goes on to compare it with Erskine May:

The first criterion is that the levy must be for industry purposes. The second is that the funds collected must not form any part of government revenue.

He concludes by comparing the provisions of Bill C-32:

There is further evidence that the levy [in Bill C-32] was not viewed as a tax. I say this because, so far as I have been able to determine, the bill was not preceded by a ways and means resolution, which would have been a prerequisite if the funds had been viewed as a tax.

I refer to section 35. I am not discussing the substance but just the case of proving that it is a levy. If part of the general revenue, the consolidated revenue of the government, it would have to come back to the consolidated revenue of the government. If a charge on the people, it would have to be part of government revenues and, if anything happened, come back to government revenues.

This creates a foundation and section 35 clearly establishes that if the foundation is wound up the revenues have to be transferred from the council of the foundation and therefore back to the tobacco industry.

The bill clearly identifies that the objective is to impose a levy on one particular industry just as was done with the blank tapes on Bill C-32. There is no difference at all. It is for the benefit of a particular purpose which is beneficial to the industry as a whole. The tobacco industry supports Bill S-13 by saying “We cannot do it ourselves, we are not credible, nobody will accept it from us. Therefore an arm's length foundation that keeps the revenue which it is totally in control of can do this on our behalf”.

What is the difference between this and Bill C-32? There is none at all.

My colleague from Pierrefonds—Dollard tabled two legal opinions by Michael Clegg and Mark Siegel, experts in the field.

They appeared before the Senate and they clearly established that in their minds it was a levy and not a tax.

There is a letter in the Ottawa Citizen today from one of our foremost lawyers, Lawrence Greenspon, and I would like to quote from it because I think it is very important at this time:

Canadian courts are used to dealing with this issue and have distinguished between these kinds of regulatory charges on the one hand, and taxes on the other. They are not the same thing.

The first legal requirement is that the levy be imposed on the industry for what is called an industry purpose. Here the aim is clear. The bill targets the tobacco manufacturers, collects the money from those manufacturers and then uses the money exclusively to direct information at a segment of the population affected by the products of those same manufacturers.

The second condition that must be satisfied is to ensure that none of the money collected ends up in the Consolidated Revenue Fund. The provisions of the bill ensure that if there is a surplus it goes back to its source, the tobacco manufacturers.

That is the case with this bill.

Mr. Greenspon also says “As a lawyer I am saddened by the prospect of legal interpretation being misused to overcome this life-saving effort”. Mr. Greenspon concludes that in his mind it is definitely a levy.

I appeal to you, Mr. Speaker, to recognize this as what it very clearly is. My colleagues, I would say, fully support the principle of this bill. I disagree with others who say they do not because I know that they do, and strongly do.

I feel that members feel duty bound to intervene on a question which is very germane to what we do here. I think it is very important that they did. I appreciate that they did. It will be your ruling, Mr. Speaker.

I notice that members opposite invoked section 53 of the Constitution Act. Members referred several times to the Constitution and I suggest that in Beauchesne's it is very clear that matters of constitutional law and matters of the law itself are not your prerequisite. I think this goes beyond the scope of what the Speaker should do.

I feel it is within your scope, Mr. Speaker, to look at this legislation which is expressed in very clear and plain language, which clearly identifies its purpose, its meaning and its objectives. Look at it and agree with us that there is no tax chargeable on the people, that there is no need for a ways and means motion, that it can be introduced in the other place, as has been done, that it is valid here and that we should deal with it.

I hope, Mr. Speaker, that is the way you will conclude your recommendations to us.

[The Speaker]

There are still four members on the list who wish to speak. At 5.30 p.m. we are supposed to go to Private Members' Business. That is an order of the House.

There are approximately 12 minutes left and there are four of you on your feet. May I suggest that you summarize your remarks in three minutes, if you can. I am going to hear the hon. member from the Reform Party, then the hon. member for Whitby—Ajax, then the hon. member for Burnaby—Douglas and then you will wrap up.

[John Cummins, Reform, Delta—South Richmond, BC]

Mr. Speaker, some people in this House seem to be under the mistaken assumption that the 50 cent a carton donation is a tax or a levy. In my view it is not a tax, it is not a levy, it is merely a compulsory donation supporting a cause which I think is above reproach, that is, to discourage children from experimenting and becoming addicted to a totally foul and nasty drug. The intent of this bill is not to fill the pockets of the taxman.

In all seriousness, the issue of whether it is a tax or a levy is a grey area. I think that gives the Speaker some latitude when considering this. It certainly gives you some latitude in determining whether or not this bill is appropriate to come before the House.

I suggest, Mr. Speaker, that when you consider this you consider the fact, as you have said many times, that you are a servant of the House and the members of this place. I believe that the will exists on both sides of the House to see that this issue is brought forward and debated in full. I ask you to take that into consideration.

I think it unseemly that the government should attempt to prevent the introduction of this bill through a technicality. It is time that we did something for our kids. I would like to see this bill brought forward quickly for debate.

[Judi Longfield, Liberal, Whitby—Ajax, ON]

Mr. Speaker, you have already heard eloquent arguments about whether this bill really constitutes a tax or a levy and I do not intend to repeat them. However, I do intend to highlight another aspect of this process as it concerns your involvement as Speaker of the House.

Mr. Speaker, asking you to rule this bill a tax bill and therefore out of order is asking you to contradict the stated intentions of the bill. The bill states that it is proposing a levy, not a tax. The bill states that the levy is for publicly stated industry purposes and objectives. The bill states that these funds will not flow into the consolidated revenue fund. As articulated by my colleague from Lac-Saint-Louis, this bill clearly states and proves that it will impose a levy, not a tax.

Mr. Speaker, with the greatest respect, it is not your role to impugn motives other than those stated in the bill. You are in effect being asked to speculate about the possible impact this bill will have in law. You are being asked to provide both a legal and a constitutional decision.

I know you are familiar with Beauchesne's, but for the record I repeat citation 168(5) at page 49 of Beauchesne's 6th edition:

The Speaker will not give a decision upon a constitutional question nor decide a question of law, though the same may be raised on a point of order or privilege.

It is the role of the courts to make this determination, not the role of the Speaker.

Mr. Speaker, your role, as you well know, is to guard the privilege to debate and speak freely on virtually every issue. In the absence of any compelling reason proving that this bill is procedurally unacceptable, your duty is to allow the debate to continue and to allow us, the members of this place, to make an appropriate determination on the merits of the bill.

In closing, I would like to say that it is unfortunate that such a worthy initiative is being caught up in procedural wrangling, particularly when there appears to be broad multi-party support for the goal of this bill, which is to protect the health of our young people.

Mr. Speaker, you have a bill with stated intentions. You must apply the rules, not interpret the law or impugn other motives.

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

Mr. Speaker, I will obey your injunction and be very brief.

I want to associate myself with the eloquent arguments that were made initially by the member for St. Paul's and thank her for bringing this important legislation before the House. I also want to pay tribute to Senator Colin Kenny who has travelled tirelessly across this country, in the shared objective of members on all sides of this House, to deal with the human tragedy of 40,000 deaths each year, too many of which are teenagers and young people.

While there have been a range of arguments on the issue of a tax versus a levy and the constitutional acceptance of this legislation, I suggest an alternative which might meet with the approval of members on all sides.

I have consulted with the Table. There is another option, other than a ruling at this stage which may or may not preclude debate on the substance of this bill. I appeal to members to consider seriously this option.

I make it very clear that this argument is without prejudice to the position that I, the member for St. Paul's, my colleague from Winnipeg North Centre and others would take, which is that the bill is in order and should proceed.

I suggest to members that the House is in a position, should it agree not to give unanimous consent to allow this bill to proceed through all stages, to give consent to allow this bill to proceed through second reading and committee stage. The House can give that consent now. Members can give that consent. Should that consent be forthcoming, then Canadians would be in a position to be heard on this issue through members on all sides, both in the House and in committee.

At the same time the government could consider the advisability or the wisdom of proceeding with a ways and means motion, should it believe that necessary.

Obviously, Mr. Speaker, procedurally I would suggest that should consent be granted, your ruling would be postponed until necessary to rule on the specific issue of the necessity for a ways and means motion.

I want to appeal to members of the House. There is a will on all sides of the House to allow the merits of this very important legislation to be heard. Therefore, I want to ask members on all sides of the House for unanimous consent to allow Bill S-13 to proceed through second reading and committee stage.

Should consent be granted, then obviously it would still be very much within the purview of the government to consider the wisdom of proceeding with a ways and means motion. But what this would allow—and, as I say, I have consulted with the Table—is for the merits of this very important legislation to be considered in the House and in committee. Therefore, I seek that consent.

[The Speaker]

I want to understand, so I will put this to the member. The member wants permission to ask for unanimous consent to advance this bill to a certain stage, and I believe he said second reading and committee stage. That is what he wants the consent of the House to do. That is in order.

Does the hon. member have the consent of the House to put the motion?

[Some hon. members]

Agreed.

[Some hon. members]

No.

[John Bryden, Liberal, Wentworth—Burlington, ON]

Mr. Speaker, I will try to give you some constructive suggestions.

The issue around Bill S-13 seems to be revolving around the definition of the word levy. I point out in the legislation that under definitions it says “Levy means the levy”. The legislation defines levy by the same word. It is a levy for industry purposes.

Mr. Speaker, there have been arguments that you should pay careful attention to what judges say, to what the supreme court says on issues like this, and to what the courts in general say. I will ask you to speak as the president of the highest court in the land. I look to you to make a decision that is above the courts because this place is above the courts.

Having said that, I do not think we need to go to the courts to define what the word levy means. All we have to do is go to the table in front of you and examine the Concise Oxford Dictionary , which is the Table dictionary. If we look up the word levy we will find that the definition is “the collecting of a contribution, tax, et cetera”.

Mr. Speaker, were you to go to the parliamentary library and look up the Oxford English Dictionary , volume 8, you would find this definition of levy: “the action of collecting an assessment, duty, tax, et cetera”. Collins English Dictionary defines levy as: a) the art of imposing and collecting a tax, tariff, et cetera; b) the money so raised”. The American Heritage Dictionary of the English Language defines it this way: “to impose or collect a tax”. Finally, if we look at Larousse , we will find that “prélèvement” is translated as “impôt”.

Mr. Speaker, there is no question about what the English and the French language mean by the word levy, and it is a tax. However, you have heard arguments that there have been interpretations of the word levy made by the courts as having something to do with raising money by regulation.

The member for New Brunswick Southwest drew your attention to the Ontario probate fees. He said that if you want an example of a levy you could look at the Ontario probate fees, and he cited court documents. Recently that has been the source of a court challenge and those fees have been declared a tax. As I understand it, the Ontario government is now on the hook for about a billion dollars on this levy.

I would ask you, Mr. Speaker, to consider very carefully what we really do mean by a levy. Again the dictionary before you on the table defines tax. We have seen in that dictionary that a levy is a tax and now we will look at the definition of a tax. It reads:

—a contribution to government revenue compulsorily levied on individuals, property, or businesses.

One of the arguments we have been hearing is that because this compulsory tax goes to a foundation it is not really a tax at all. I submit that because a foundation is a creature of this parliament, a creature of this government, it is indeed a recipient of a tax. We do not evade the question of whether a tax is a tax simply because it goes to an arm's length agency that has been created by the government.

The key word is the fact that money is being raised from people compulsorily. I point out that normally in our legislation we do not make a distinction between individuals who are persons like myself, single people, and corporations. They are often viewed in legislation as individuals and they are regarded as such.

I draw your attention, Mr. Speaker, to another definition in the legislation:

“sponsor of the Foundation” means a person who pays a levy.

If we transpose the word levy for tax, that definition actually is that sponsor of the foundation means a person who pays a tax. In other words, this is all about taxing somebody.

[The Speaker]

This has been a very interesting afternoon. I would imagine that this will be a far-reaching decision.

I will take the advice that you have given me and I will look to other sources so that I get a complete view of this particular problem. Of course you would not want me to limit myself only to what was said in the House because there is, no doubt, other information that I will need.

I will take into consideration the very valuable information that you have given me today. When I have looked all the material, I will return to the House with a decision on this particular point of order.

[Carolyn Bennett, Liberal, St. Paul's, ON]

Mr. Speaker, if you come across information that would be interesting to the House or possibly new information that was not raised here this afternoon, would it be possible for you to bring that to us so that we could comment?

[The Speaker]

I know you do not want to get into a debate with your Speaker, but when I bring my decision forth there will be no doubt as to where I get my information from. That will be laid before the House when I make my decision.

It being 5.30 p.m., the House will now proceed to the consideration of Private Members' Business as listed on today's order paper.

Criminal Code

[Paul Forseth, Reform, New Westminster—Coquitlam—Burnaby, BC]

moved that Bill C-207, an act to amend the Criminal Code (trespass), be read the second time and referred to a committee.

Mr. Speaker, it is certainly a privilege to begin debate today on my private member's Bill C-207 dealing with amending the Criminal Code with respect to trespassing.

The bill arises out of community response. My motivation is based on complaints from police officers, security at shopping malls and so on; my experience in dealing with family disputes being an officer of the criminal justice system in the past; and comments from the general public.

Certainly my motivation is to protect my community, to protect the viability for children in a library, at a skating rink, on the school grounds or at a local shopping mall. In domestic family disputes it would certainly go a long way to facilitate voluntary compliance in preserving the peace in residences to protect children there.

Essentially the frustration is that persons are trespassing on property, causing a public disturbance and destroying a sense of community and livability for children, yet are unable to be removed permanently for a small period of time. For example, malls are a popular place for youth to hang out, sometimes for young drug dealers to strut their style, or for casual gangs to want to show off and simply take over an area.

Security in malls consistently has a difficult time in maintaining civility. The main reason is that they have little, if any, authoritative jurisdiction when they want to give a warning to someone. They really cannot warn the person with anything other than saying that legally they could remove them from the property.

If the security staff of the mall, a library or whatever, is forced to remove a problem person, that person can just re-enter within minutes. There is no place in the Criminal Code that states the trespasser must stay off the property for any period of time. The only way the person could be charged is if he or she resists while being removed from the property. If the person never resists that act could continue over and over again, and it does in some cases.

Something that federal government officials seem to often forget is that teenagers are extremely street smart. I recall when serving on the Standing Committee on Justice and Legal Affairs we were dealing with the Young Offenders Act. A witness wanted me to believe that most young offenders have no idea of what the possible penalties were under the Young Offenders Act. That is certainly not the case.

For a long time now, Reformers have been calling for the Young Offenders Act to be strengthened in order to deter young offenders from committing crime. One of the reasons for that is the community reputation. The observation of outcomes from that act were known to be rather light or inconsequential. Therefore there is no respect for the law.

Before I became a member of parliament I served as a family justice counsellor and a probation-parole officer in the attorney general's ministry of British Columbia. I spent a great amount of time dealing one to one with young offenders. After a while in that kind of role one understands how they think. In many circumstances they know exactly what they are doing. Their actions are quite calculated. Many know how to beat the system. If there is a loophole in the system, an offender will certainly find it and the word quickly travels on the street.

What Reformers have been doing for the past five years is attempting to amend the justice system by closing some of these obvious loopholes, one loophole at a time in an orderly way.

Every province seems to have a different way of dealing with trespassers. In British Columbia trespassing laws are rather weak. Something has to be done with this most serious issue. With the provinces sometimes doing very little to remedy the situation, I believe that something should be done to amend the Criminal Code so that we can have a national standard of reasonable social behaviour in a public place, perhaps a Canadian identity of civility to one another.

Recently an employee of the Department of Justice phoned my office to inquire about the bill we are discussing. The official asked a member of my staff why we just do not lobby the provinces to amend their legislation as this change apparently borders on federal-provincial jurisdiction. My response was that we cannot always look to the provinces as an escape for federal inaction. We cannot simply blame the provinces and say that it is their fare.

Here is an example where the federal government needs to take some lead for once. It is rightly in the jurisdiction of the federal government to amend the Criminal Code, section 41, and it will not be trampling on the feet of the provinces.

The amendments that I am proposing in Bill C-207 would strengthen section 41 of the Criminal Code. Section 41(1) clearly states:

That every one who is in peaceable possession of a dwelling house or real property, and every one lawfully assisting him or acting under his authority, is justified in using force to prevent any person from trespassing on the dwelling house or real property, or to remove a trespasser therefrom, if he uses no more force than is necessary.

I am proposing an amendment to section 41 of the code, making it a summary conviction, that is a minor offence, for a person who has already been lawfully removed from real property or a dwelling house not to be able to lawfully return for just 24 hours. The reason for 24 hours is to provide adequate time for the individual to cool off. It is amazing how attitudes change the following morning.

It also provides a social intervening time for the crowd mentality behaviour and the show off behaviour to others to be interfered with. Often the issue is the timing. When someone is being legally removed the whole idea of their being able to come back within minutes and mock the system is often the game that is played.

I will give a hypothetical situation. A teenager is removed from a shopping mall for causing a disturbance short of a serious crime. That teenager then must stay out of the shopping mall for a total of 24 hours under my provision. Otherwise, he or she could be charged with trespassing and may be found guilty of an offence punishable upon summary conviction. In other words, the teenager would be given a ticket.

In another hypothetical situation a boyfriend enters the property of his girlfriend and little children and is told to leave. He will not leave so the police are called. They arrive and legally remove him from the property. But under the law there is nothing that stops him from repeating this an hour later and the lady will be forced to go through the same exercise over and over. The police know their hands are tied, especially if this happens on a Saturday afternoon rather than prowling by night on residential property.

The amendment to section 47 would keep this fellow off that property for 24 hours. Otherwise he would be charged with a summary conviction. When being removed for the first time he then could be warned of the consequences if he returned before 24 hours had passed. In the current situation no such warning could be given.

This is a real gap in the issue of domestic disputes and preserving the peace for children. Because of the way the government has manipulated Private Members' Business, Bill C-207 is unfortunately finished at the end of this hour. However I do not plan to give up on this issue.

It is the responsibility of the Department of Justice to make the criminal justice system loophole free and get rid of these problems. That is why from time to time we receive omnibus bills that deal with a variety of issues throughout the Criminal Code. We do have the larger agenda of trying to provide peace, order and good government and to have safer streets.

Today should have been the first hour of three hours of debate on Bill C-207, but the way in which the subcommittee on Private Members' Business conducts its selection is rather atrocious. It is a travesty that members who diligently work to create legislation are not allowed the opportunity to get something through parliament.

I was elected in 1993. Since that time I can count on one hand the number of times I have had a bill drawn. Once I made it through that lotto I was rarely fortunate to have one of my private member's bills adopted into federal legislation which eventually became law. I was lucky at one point to have that happen.

The bill I introduced amended the Bankruptcy and Insolvency Act. It was a minor amendment but it was significant as far as I was concerned. It closed a loophole and was similar in nature to what I am proposing today. The Minister of Industry at the time acted justly and adopted my bill into the government bill and the contents of my proposal is now the law in Canada.

It really did not matter where the bill came from. It was the matter that we got the job done. The issue is trying to provide co-operation and reconciliation in the House instead of always dividing on every issue.

The subcommittee on Private Members' Business held a round table discussion on the issue of making all private members' motions votable. It is my hope, and I am sure the hope of every backbencher in the House, that change will occur soon.

Every member of the House knows the Criminal Code has loopholes. When the justice minister introduced omnibus bills amending tiny flaws in the code the minister was admitting there were adjustments that needed to be made.

Canadians do not expect the Criminal Code to be perfect. It is an evolving piece of social legislation in some respects which reflects public sentiments and attitudes. It needs to be adjusted over a period of time to new realities. The public does expect government to act forthwith when a flaw is clearly pointed out.

I pointed out a loophole in section 41 of the Criminal Code. Bill C-207 would help to eliminate a great deal of problems for local authorities and citizens who have spent a great amount of time investing in their local community centre, only to see the peace and enjoyment of that centre or hockey rink degraded to the point where it becomes unusable and they are afraid to bring their children there.

There is a concern in my community. My constituents asked me to help to throw water on this little fire.

It is unfortunate that Bill C-207 was not made votable. Therefore I will have to tell my community that its voice has little weight in Ottawa because of the arrogance of the Liberal government. The people's agenda is not reflected here. It is sadly just the agenda of old tired ways.

The Minister of Justice is no more of an expert in community justice issues than any of us are. All she needs to do is once in a while look on the order paper at some of the bills introduced by backbenchers to see the needs are for better law and order in Canada. It is not complicated, not difficult. It just requires courage provided the minister and the rest of her cabinet cronies have the will to make Canada a better place to live. I have outlined a community need. May this House find the same sense of courage to act.

[Eleni Bakopanos, Liberal, Parliamentary Secretary to Minister of Justice and Attorney General of Canada]

Mr. Speaker, Bill C-207 would provide for an amendment to the code to create a new offence in relation to trespassing. It would also create a summary conviction offence of subsequent trespass. This offence would occur where a person trespasses on a dwelling house or other real property within 24 hours of having been lawfully removed from or prevented from entering the same property.

It essentially criminalizes the second trespass that occurs within a 24 hour period with respect to the same property.

The bill would provide for an amendment of the Criminal Code to create a new offence in relation to trespassing. The hon. member's bill would create a summary conviction offence of subsequent trespass.

This offence would occur where a person trespasses on a dwelling-house or other real property within 24 hours of having been lawfully removed from or prevented from entering the same property. Essentially, it would criminalize a second trespass.

It is important to begin with a clear understanding of what trespass means. Trespass is a specific legal term referring to a civil fault or tort. A trespasser is a person who enters a premises without the permission of the occupier or owner. A person invited on to the property can become a trespasser if the individual is revoked by the owner asking the person to leave. Nothing more is required for trespass to occur than for a person to enter without permission or to remain on the property after being asked to leave.

Even the most minimal intrusions on to property constitute a trespass in law. There is no need for any damage to be caused to the property. Trespass is a private matter between the trespasser and the occupier of the property. The proper remedy for trespass is a civil action for damages and injunctions are available in extreme cases to prevent future or ongoing trespass.

The existing law allows the owner of the property to lawfully eject the trespasser at any point. As a matter of property and civil rights, the law of trespass falls within the legislative jurisdiction of each of the provinces. In addition to the civil law relating to trespass, many provinces have enacted legislation creating provincial offences for trespass.

As a matter of property and civil rights, the law of trespass falls within the legislative jurisdiction of each of the provinces.

Trespass to property is not currently a criminal offence. Trespass is not a criminal offence because in and of itself it may be a relatively minor intrusion into the rights of another and may not be sufficiently harmful to require the criminal law as a response. The civil remedies combined with provincial legislation cover most situations.

Trespass to property is not currently a criminal offence. Trespass is not a criminal offence basically because, in and of itself, it may be a relatively minor intrusion into the rights of another, and not sufficiently harmful to require the criminal law as a response.

The Law Reform Commission of Canada studied the issue of whether to criminalize mere trespass without any further criminal intent or criminal conduct. The commission found this inadvisable. In addition to restating the fundamental principle that the criminal law should be used with restraint, the commission found that provincial trespass legislation and civil tort law provided adequate protection. The hon. member's proposed amendment does not seek to make a mere trespass a criminal offence. Instead, it is aimed at the mischief caused when a person who trespasses is asked or made to leave and then returns within a short period of time. It basically seeks to make a second trespass a criminal offence.

Since the first trespass is not a criminal offence, it is difficult in principle justifying making the second trespass a criminal offence. If a first trespass is not sufficiently harmful conduct to be considered criminal then it is not entirely clear what feature of the subsequent trespass makes it serious enough to be criminal.

Certainly it does aggravate the owner and requires the owner to eject the trespasser a second time. But this added aggravation in itself is not sufficiently harmful to render the trespasser subject to the criminal process although at this point they may clearly be violating the civil property rights of the owner of the property and be subject to a civil action and they may also be violating other provincial legislation.

Certainly, it does aggravate the owner and require the owner to eject the trespasser a second time, but this added aggravation in and of itself is not sufficiently harmful to render the trespasser subject to the criminal process, although at this point they may clearly be violating the civil property rights of the owner of the property, and be subject to a civil action, and they may also be violating other provincial legislation.

Also, the hon. member's proposal creates a somewhat arbitrary offence as well in that it criminalizes a return to the property only within 24 hours. It is not exactly clear why two trespasses within 24 hours should be a crime and not two within 25 or 30 hours.

In many situations there might be little or no serious harm caused to society but the mere presence of a trespasser if there is not also some more serious criminal intent or interference with the rights of others. While it may be the case that a property owner is inconvenienced or aggravated by the repeat trespasser, the hon. member's proposal would make a criminal out of every person who returned to a place after having been asked to leave.

For instance a door to door salesman who we all know tries twice to sell his wares would be captured as would be the teenager delivering flyers against the wishes of a homeowner. Such people may very well be a nuisance to the property owner and this kind of behaviour may well be a violation of civil or provincial law, but there should be evidence of at least more serious or potential harm before that behaviour is deemed to be criminal under the Criminal Code.

I recognize the hon. member's concern that it can be difficult to deal with a teenager who returns to a favourite spot to loiter or a person who returns to a party after having been asked to leave. What is really at issue in these instances is the occupier's desire to control what happens on their property, and this is a matter regulated by the civil law of the provinces and in some cases by provincial offences.

This is not at all to say that the existing criminal law does not protect the rights of property owners and occupiers. This government strongly supports and protects private property rights and various legislative provisions in the Criminal Code already address many forms of conduct by a trespasser who poses a real risk to society and to individuals.

For instance, it is an indictable offence to break and enter into any place with intent to commit and indictable offence. A person breaks and enters not only where they forcibly find a way in but if they enter by an existing permanent or temporary opening without lawful justification or excuse. In the case of a dwelling house it is a further offence to be in the dwelling house without lawful excuse with intent to commit an indictable offence.

These offences criminalize the conduct of a trespasser who is trespassing for the purpose of committing a serious criminal offence. In these cases, there is serious harm or potential for harm caused by the trespasser. They also recognize that if the trespasser is present for an innocent purpose, for instance a lost hiker seeking refuge from the elements in a cabin, there would be no criminal offence. There may, however, be a tort and the property owner could sue for any damage to the property.

An additional offence is in section 177 of the Criminal Code which creates the offence of trespassing at night. This offence prohibits loitering or prowling at night on someone else's property near a dwelling house. Here the circumstances of the trespass are clearly in and of themselves serious enough to warrant being criminalized.

The Criminal Code also contains various offences that prohibit behaviour that interferes with the rights of others to enjoy public and private spaces. For instance, section 175 of the Criminal Code makes it a summary conviction offence to cause a disturbance in a public place in various ways such as screaming, shouting or impeding people.

It is also an offence to loiter in a public place while obstructing people. Further, it is an offence to disturb the peace and quiet of the occupants of a dwelling house by disorderly conduct.

These offences target the harmful and disturbing consequences of conduct on others who are lawfully entitled to peace or to unimpeded movement in public places. A trespasser who goes so far as to interfere with the rights of others in these ways by causing a disturbance or by interfering with people's movements commits an offence and can be charged accordingly. For example, the teenager who loiters in a shopping mall would be committing an offence if his behaviour was disturbing others or preventing them from moving freely.

If the teenager is sitting quietly despite being asked to leave repeatedly, he may very well be violating the mall owner's property rights in some way or committing a provincial offence and the mall owner will have options available under provincial law. However, the teenager should not be labelled a criminal if he is not disturbing or interfering with anyone else.

The hon. member's proposal would criminalize the mere trespass without any requirement of proof of a negative impact on the person's free movement or right to undisturbed enjoyment of public places. The criminal law should target the harmful consequences of action instead of criminalizing all action simply because they may have a negative impact under certain circumstances.

[Peter MacKay, Progressive Conservative, Pictou—Antigonish—Guysborough, NS]

Madam Speaker, I am pleased to take part in the debate and to be supportive of Bill C-207 sponsored by the hon. member New Westminster—Coquitlam—Burnaby.

Bill C-207 is straightforward and what I would deem a common sense piece of legislation that would in essence crack down on those who repeatedly trespass on the private property or dwelling houses from which they have already been lawfully prohibited or removed.

As mentioned, the bill would amend section 41 of the Criminal Code to make it a summary conviction offence for a person who has been already lawfully removed or prevented from entering a dwelling house or real property within the previous 24 hours to trespass on that dwelling house or real property.

With such a provision in the Criminal Code, police and the courts would have an additional tool to protect individuals who can be terrorized. As a former crown attorney I challenge any member in this House to stand here tonight and say this would not have a positive effect on keeping criminals away from their victims. It would be an effective deterrent.

In particular, Bill C-207 would give our justice system one more tool to create the ability to combat the serious problem of criminal harassment commonly known as stalking. This is a crime whose victims, more often than not, are women. Criminal harassment has been around for a long time but it has only been codified in recent years.

While I support Bill C-207 I feel that there must be more done specifically to address this problem created by stalkers. As on most issues of concern, the Conservative government actively pursued measures to crack down on stalking.

In April 1993 the hon. Pierre Blais, justice minister of the day, introduced legislation that created for the first time in the history of Canada in legal statute the offence of criminal harassment. This bill quickly received passage in both the House of Commons and the Senate and received royal assent on August 1, 1993.

This was the first of an important series of steps in providing victims of this horrendous crime with recourse within our criminal justice system. Regrettably, the effectiveness of this legislation has since proven to be less than stellar.

In October 1996 the Department of Justice issued a report which evaluated the new law's effectiveness in prosecuting harassment behaviour in the protection of victims of crime.

This report concluded that the offence of criminal harassment was not treated seriously enough by judges and lawyers. Several indicators illustrate this point.

One is that the number of criminal harassment charges withdrawn or stayed by the crown as well as the number of charges withdrawn in exchange for peace bonds are extremely high when compared with charges related to other specific categories of crime. This is something that happens quite often in the context of plea bargains; that is that a criminal harassment charge may be laid in conjunction with another charge, for example assault, and the criminal harassment charge is essentially dealt away.

This illustrates the point that sadly this type of criminal offence has not been as effective as it was originally intended.

The justice department review reported that almost 60% of criminal harassment charges are withdrawn or stayed. It is also disheartening to hear from the justice department's information that 75% of those convicted of criminal harassment receive either probation or suspended sentences. The report concluded that the severity of the sentences imposed by the courts in cases of criminal harassment has not met the expectations in that legislation.

Some members may be asking why is this a problem. It is a problem because the previous criminal record, a record of violence against that same victim, or a record of breaching court orders, does not assure a stronger sanction from our criminal justice system, which is what this legislation in effect is intended to do. It gives crown prosecutors, police officers and ultimately judges greater ability to impose sanctions in response to criminal activity. Moreover, the great majority of accused criminals are released prior to their trial even though many of them had previous criminal records. Many of them had records of previous breaches of courts orders and many of them had been violent to their partners in the past.

The bottom line is that the justice department's report from 1996 seems to indicate that the strong anti-stalking legislation message has not been received by Criminal Code provisions and those who practice law in this country. It has not adequately been implemented.

We need more than a codified definition of criminal harassment. Although I support Bill C-207 and its simple positive intent, we need legislation that extends much further, legislation that would clearly and unequivocally state that Canadian society does not accept this type of crime in any way, shape or form.

I therefore use this opportunity to highlight a related piece of legislation, Bill S-17, an act to amend the Criminal Code respecting criminal harassment and other related matters. Fellow Nova Scotian and Progressive Conservative Senator Donald Oliver introduced Bill S-17 in May.

Many members of the House, particularly members of the Reform Party, have an unfortunate propensity for taking needless cheap shots at the upper house. While the Senate is an institution no doubt in need of change and in need of comprehensive change to reflect Canadians entering into the 21st century, the majority of senators as individuals are making positive contributions in federal legislation. We have witnessed such positive contributions, particularly laudable legislation such as Bill S-13 which was the subject of debate today.

We also have Bill S-11 regarding amendments to Canadian Human Rights Act from Senator Erminie Cohen, sponsored in this Chamber by my caucus colleague from Shefford. We also have another example in Senator Forrestall, another fellow Nova Scotian Conservative, who introduced several successful amendments to the Canada Marine Act this spring. Senator Forrestall's hard work even drew applause from the hon. member for Sackville—Eastern Shore, whose New Democratic Party favours outright abolition of the Senate.

Instead of using the Senate as a tired political prop, to which my colleague from Calgary West appears chronically addicted, let us work with senators to ensure that Canadians get the best legislation from this parliament.

In that vein I hope that Bill S-17 presently before the Senate committee on legal and constitutional affairs will make it to the House. If it does I look forward to obtaining the support of all hon. members and even the sponsor of this bill. Regardless of political affiliation we should be worried about preserving the law in order to help pass good law into being.

Turning back to Bill C-207, on behalf of the Progressive Conservative Party we speak in favour of it. It is consistent with our party's overall tradition of keeping Canada's streets safe through effective legislation. I cannot say enough, however, that we need more co-operation on all sides of the House to ensure this type of effective legislation passes. Specifically, we need to do more to get tough on stalkers and protect innocent Canadians. This bill goes a long way to accomplish that end.

If we continue to work together and ensure that bills such as Bill C-207 and Bill S-17 are passed there will be no confusion among Canadians as to what the purpose of parliament is, that Canada has a zero tolerance policy with respect to criminal harassment. This is a laudable aim. I urge all hon. members to support this legislation. Again I commend the hon. member who moved this motion.

[Paul Forseth, Reform, New Westminster—Coquitlam—Burnaby, BC]

Madam Speaker, I would like to summarize what we have heard today.

Sadly what I have heard from the justice department are some of the most arcane arguments that are not really relevant to the point I put before the House.

One of the main understandings we have to get with this motion is that it really supports community resolution of these conflicts without having to use a heavy handed approach. In these situations it is contemplated that the warnings are given. Generally if there is some legal sanction that backs up the warning, then alternative dispute settlement actually happens and no one is actually charged in the end because someone would know that if they cross the line then they will be charged. Therefore it positively supports community peace.

One of the other aspects that is often overlooked is around the area of domestic disputes. Restraining orders in themselves are not all that easy to obtain, especially from the supreme court or a provincial legislation such as non-interference with children orders. So the availability in those circumstances is often difficult. Then there is the ongoing viability. A policeman is called and some lady puts an order to the policeman saying she wants it enforced. The policeman does not know if the order is still valid and what the essential jurisdiction of it is. The whole history of these extra court orders to deal with ongoing difficult situations of an identified individual showing up on a premises is very poor.

This legislation would greatly help in that circumstance around child access problems and protecting the peace for children.

One of the other circumstances is public school grounds. Individuals who may be known drug dealers or whatever may not be carrying drugs with them but will come to an elementary school ground, hang around wanting to become familiar with certain children. We have had the circumstance of their trying to ingratiate themselves to individuals. The long term agenda as we know from discovering the circumstances later is that they want to get these children involved in prostitution. School authorities have had great difficulty protecting the sanctity of the public school grounds from these individuals.

I am really upset when I hear this hand wringing, do nothing approach from the justice department. It is just incredible. It fails to reflect the community mood about these obvious breaches of the public peace. The system appears absolutely incompetent to do anything about it.

Having someone lawfully removed in the first place is the trigger for this offence. It is not entered into lightly. Someone would have to be removed for the circumstance involved in the second instance. I believe this is in the public interest to preserve the peace. It is not a draconian measure. It is most reasonable and it does go a long way to preserve the peace and order of the community and especially to protect children.

[The Acting Speaker (Ms. Thibeault)]

There being no further members rising for debate and the motion not being designated a votable item, the time provided for the consideration of Private Members' Business has now expired and the order is dropped from the order paper.

A motion to adjourn the House under Standing Order 38 deemed to have been moved.

[Gilles Bernier, Progressive Conservative, Tobique—Mactaquac, NB]

Madam Speaker, for several weeks now the Prime Minister and the solicitor general have been avoiding answering questions about APEC, with the excuse that they could not say anything because the matter was under investigation by the RCMP public complaints commission.

The solicitor general has totally contradicted what he said previously in discussing APEC in a public place, on a plane.

The solicitor general has questioned the accuracy of the account taken by the member for Palliser on that plane, but he has never denied that he discussed APEC, nor has he ever stated exactly what he said in that conversation. In fact, the Prime Minister has made reference to the accuracy of the account as it deals with Airbus. By trying to impress a friend and chattering on in a public place about very sensitive information entrusted to him in his position as the minister responsible for the RCMP, he has demonstrated he is unfit to sit in cabinet.

Indeed, by his indiscretions he has become an object of ridicule by his colleagues, the media, voters and even his own constituents.

This was best summed up by an editorial in the Globe and Mail on October 8: “Stupidity isn't a crime, but it's no foundation for cabinet office either”.

The Hill Times said: “This has damaged the solicitor general's career and has raised some serious questions about his competence”.

The Halifax Herald said: “The member from Fredericton should not be solicitor general. His offence was to say anything about a matter before a public tribunal for which he has ministerial responsibility. This was as wrong as a judge casually talking about cases out of court”.

The member for Fredericton was indiscreet by talking about confidential information in a public place. It is immaterial what were his exact words used in that conversation. It does not matter who heard the conversation. The fact that he had this conversation at all shows that the member has compromised the office of the solicitor general. He has put his own self-interests ahead of the interest of Canada and the APEC inquiry.

I have not changed my mind. He should do the honourable thing and resign.

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

Madam Speaker, the ability to question any perceived wrongdoing makes up a fundamental component of our criminal justice system and indeed our human rights as a nation.

Under the RCMP act, members of the public can make complaints regarding the conduct of RCMP members to the public complaints commission which has the power to look into and make recommendations on the conduct of RCMP members.

The terms of reference of the APEC hearing show clearly how broad the scope of such an inquiry can be. The APEC panel will hear all evidence and will report on “the events that took place during or in conjunction with demonstrations during the APEC conference in Vancouver”.

The chair of the public complaints commission has stated that the panel will follow the evidence where it leads and that the scope of the investigation will be broad. Any questions regarding RCMP operations prior to and during the APEC summit are squarely within the scope of the hearing.

The hon. member from Tobique—Mactaquac has inferred that there was inappropriate political interference in the actions of the RCMP with regard to security at the APEC conference.

While the solicitor general is the minister responsible for the RCMP it must be remembered that it is the commissioner of the RCMP who is solely responsible for criminal investigations undertaken by the RCMP.

As the solicitor general has pointed in the House on many occasions, he does not get involved in operational matters of the RCMP. With regard to the APEC conference he was kept informed by the commissioner in general terms about security for this major event.

In the case of the APEC conference, as with other large and complex international meetings, it was appropriate and necessary that the RCMP consult with interested parties such as the Departments of Foreign Affairs and International Trade and the Prime Minister's office in finalizing security arrangements. The RCMP, however, made the decisions regarding security in this event.

Police officers work in difficult circumstances.

[The Acting Speaker (Ms. Thibeault)]

I must interrupt. The motion to adjourn the House is now deemed to have been adopted. Accordingly, this House stands adjourned until tomorrow at 10 a.m., pursuant to Standing Order 24(1).

(The House adjourned at 6.13 p.m.)