Mr. Speaker, I am honoured to follow my colleague from the province of Nova Scotia. I am equally pleased to rise today to participate in the debate on Bill S-5.
This bill, as has been previously mentioned by a number of my colleagues, will amend the Canada Evidence Act and the Canadian Criminal Code with respect to persons with disabilities. It will also amend the Canadian Human Rights Act with respect to persons with disabilities and it will make consequential amendments to a number of acts.
Let me say at the outset that like my colleagues in the Progressive Conservative Party, and I am sure all members of the House, I support this legislation. This is a classic example of non-partisan legislation of which we can be proud. It reflects a spirit that we do not often see in this House.
This bill was adopted by the Senate in December 1997 with one major amendment. That amendment was indeed very important since it dealt with the grounds of discrimination prohibited by section 2 of the Canadian Charter of Rights and Freedoms.
For one reason or another, the original legislation as tabled in the Senate did not address all of the grounds of discrimination prohibited by the charter. The Senate's amendment to correct that situation was very important.
I would suggest that this amendment which was passed by our colleagues in the neighbouring House was a very positive one and I congratulate them for their efforts. It shows that the Senate can, in fact, constructively participate in this process.
As a result, Bill S-5 came before us rectified and consistent with all the provisions of the charter of rights and freedoms.
Finally, my last comment on this subject is that the Senate was very helpful in passing this bill in an expeditious way. It helped to speed the process that is very important to having this piece of legislation in place.
I will move to my comments with respect to Bill S-5 as a whole.
The bill sets out a very important principle and one which we embrace, that is, the attempt to remove the barriers to those who want to participate fully in society, and I am specifically referring to those with disabilities.
This bill is a good example of circumstances where the principle of identical treatment versus equality simply does not always work. For those individuals and groups who are disadvantaged, identical treatment does not always lead to equality. This bill addresses that problem and rectifies it by removing discriminatory barriers to ensure equality. I fully support this principle and the bill in its entirety. In general, it is a very good piece of legislation.
I will first deal with the amendments to the Canada Evidence Act. Clause 1 of the bill will make two amendments to this act. First it provides for the use of any different means necessary to allow a witness who has difficulty communicating by reason of a physical disability to give evidence in a court. For example, the use of a sign translator to help a hearing impaired person testify is a concrete example of how this section will help improve participation for those with disabilities.
Certain problems might arise. With respect to translation, there is the question of who would choose the translator. Would they be chosen by the court or would the person suffering the hearing disability be permitted to provide a translator? In the context of a criminal trial, I suggest this is very important and should be given some specific attention.
The second part of clause 1 will add section 6(1) to the Canada Evidence Act. This new section would allow witnesses to use any sensory means, for example their sense of hearing or smell, to identify an accused person. This would allow a person who is visually impaired to participate fully as a witness or potentially, and sadly, as a victim in a criminal trial. It would allow them to identify the accused.
I have had personal experience in a trial where the victim suffered head injuries and subsequently lost their sight. The accused was not apprehended until 12 years later, at which time the victim was called upon to testify. In that case there was other evidence to consider and there were other witnesses. However, that gives a concrete example of how this new amendment could effectively improve the current situation.
As a whole, these two amendments to the Canada Evidence Act represent a step forward with respect to the use and application of technology in our courtrooms. They remove physical barriers that are present for some people and encourage full participation in our criminal justice system. The justice system and the criminal courtroom itself can often be an intimidating environment, and these are positive changes.
Clauses 2 and 8 of Bill S-5 will amend the Criminal Code of Canada. The most important of these clauses will create a new criminal offence. This provision, which will create section 153.1 of the Criminal Code, recognizes that any person in a position of trust or authority who sexually abuses a vulnerable, disabled person will be guilty of an indictable offence, punishable and liable in prison for a term not exceeding five years or guilty of an offence punishable by summary conviction.
A parallel can be drawn between this new section 153.1 and the section relating to sexual violence against children, the current section 153, which also constitutes an offence. In essence, it is designed to protect a specific and more vulnerable segment of our society.
At first, although I had some reservations that this new section was not strong enough because it results in an offence punishable by a maximum of only five years, it is important to identify specifically the need to protect those with physical and mental disabilities. Such an offence is a morally reprehensible act. The Criminal Code should reflect society's revulsion of such an act. That is why I had the initial reservations with respect to the maximum sentence being only five years.
However, the new section sends an excellent message to those in the population who engage in such horrific activities. It creates a new specific criminal offence to address that.
I want to also indicate that I was pleased to see that the government decided to remove the word “invite” from the description of the offences and replace it by the stronger words “counsels” or “incites”. This I believe is intellectually sound and it makes the offence a much more precise one.
I would like to indicate that I support this new section and the changes to the Criminal Code. I hope it is not going to be used frequently. As a former crown prosecutor, I think what I would tend to suggest is that the current section 271, which refers to sexual assault for anyone, is much broader and calls for a stronger sentence of ten years as opposed to five. The crown attorneys of the land are going to have to make those individual decisions.
Clauses 4 to 7 of the bill also modify the Criminal Code and make it easier for a person with a disability to serve on a jury. Accommodation must be made to enable a disabled person to then be selected as a juror to fulfil their important civic responsibility, although I must say in my experience that I have seen many Canadians who, sadly, reflected an indication that they did not want to be on a jury. But this at least opens that door for those with disabilities who want full participation in our justice system. Again it sends an important message.
Clause 8 authorizes video testimony for disabled individuals who have difficulty communicating directly during a proceeding.
These changes in the Criminal Code I believe are designed specifically for those with disabilities. The changes will enable them to have full access to our justice system, which is something that organizations for the disabled have been long calling for.
My final remarks will address the changes to the Canadian Human Rights Tribunal which Bill S-5 in essence creates by virtue of the legislation. The creation of a tribunal specializing in human rights is certainly welcome and one that has invoked great response and is embraced by members of the House.
The Canadian human rights area is an increasingly complex one and one that has certainly been very litigious over the years.
I would like to raise some concerns, however, about this tribunal, and previous members have spoken of these concerns. For example, the Minister of Justice under the legislation will have a great deal of discretionary power and measures to allow them to intervene or to invoke disciplinary measures on members of the tribunal. The fact that the minister can be so directly involved certainly might raise some concerns about the independence of the tribunal.
Section 485 also brings forward a concern and that is with respect to the necessity that full time members of the tribunal reside in the national capital region. This, on its face, appears to be some form of regional discrimination. Certainly there are people throughout the land who are competent to sit on the tribunal. There are competent individuals throughout Canada and I would suggest this is again something that might be re-thought.
I also regret that the motion put forward by my colleague in the Bloc did not pass at the committee level. That motion proposed that it be mandatory for a member of a tribunal who is coming to the end of his or her appointed term to continue to the end of a particular hearing. That is to say, if they were scheduled to depart and a tribunal hearing had begun, they would be permitted to finish the tribunal hearing. I believe this is something again which could be modified.
Finally, I will refer specifically to the Canadian Human Rights Act and note that clause 14 of the bill, which will modify section 14 of the Canadian Human Right Act, specifically adds an anti-retaliation clause to the act. I believe this is something that is extremely important which did not exist previous to this legislation. An anti-retaliation clause means, in essence, that a person who files a complaint cannot then be open to retaliation or threat of retaliation by a defendant. This again is an improvement over the current legislation.
We in the Progressive Conservative Party of Canada support this legislation. We have always been generally supportive of changes to the criminal justice system for persons with disabilities and I believe that persons with disabilities in Canada will embrace the legislation and benefit greatly from it. It promotes the expansion of access to our justice system and it promotes and expands access to the courts which in many cases can be very intimidating for both victims and members of the public generally. The jury system will benefit from this and the criminal justice system generally will benefit. It also clearly expands human rights in Canada.
For all the reasons I have stated throughout my remarks I support this bill and I am sure all members of this House will do likewise.