Madam Speaker, it is my pleasure to speak to the motion put forward by the hon. member for Yukon concerning the legal defence of provocation.
It is true that as we move into the 21st century and we progress as a race we need to constantly question and be willing to change the rules that we use to govern and create order within our society.
As times change, we too need to change to reflect upon the current needs in our society. Refusal to change outdated ideas and practices will only result in societal stagnation that will be of benefit to no one.
The Criminal Code is a document that is not immune to such push for change. Certain sections of the Criminal Code are quite old. Thus, it could be argued that they are in need of change. However, the PC party's position concerning Motion No. 265 is that there is no justification for throwing out the entire law simply because of a few unpopular sections.
The Criminal Code, in all of its sections, however old they may be, is written in such a way as to allow for judicial interpretation. At first glance sections of the Criminal Code may seem to be outdated, yet when subjected to judicial interpretation they are brought up to speed in any number of ways that will allow the judge to ensure that justice prevails.
Detractors may argue that problems arise in judicial interpretation that allow for decisions such as the B.C. court ruling which allowed the possession of child pornography. This of course was an issue which our party opposed. However, I am a firm believer in the system and, thus, I am confident that the judges of the supreme court will correct this ruling and protect the rights of children.
The Criminal Code is the written reference by which we as Canadians conduct ourselves. It is the guideline for our society, for a safe and orderly environment. It is true that the Criminal Code is not perfect, as it was made by man, yet to allow the dissolution of an entire law simply to appease the demands of special interest groups would set a dangerous precedent that could lead to constant band-aid solutions to very specific problems. The overspecification of this law would limit judicial interpretation of the code when dealing with future cases. Constant change could lead to the eventual dismantling of the Criminal Code, placing public protection in jeopardy.
The Department of Justice has asked for commentary on the issue of the defence of provocation, self-defence and defence of property. Concern over this issue of the defence of provocation stems from societal progress. In the 1990s critics feel that this section of the Criminal Code promotes outdated values and is used to defeat modern egalitarian principles.
Currently, the Criminal Code allows for the defence of provocation, but in recent years the nature and even the existence of the law has been the object of more and more criticism. Moreover, the successful use of the defence in a number of well publicized cases has raised public concern, especially about whether the law is in fact condoning violence. I am referring to the Department of Justice report.
I do not believe for a moment that the law is condoning violence. In fact the law is protecting those who find themselves in a condition of mental anguish. This horrible condition would stem from such unspeakable situations as mental, physical and emotional abuse. These people will sometimes reach a point of distress where they cannot be held responsible for their actions when defending themselves from an abusive attack. The Criminal Code can protect these people if it remains in its current form, where non-partisan judges can interpret the code and hand down a decision that will address the needs and concerns of modern day society.
Issues of self-defence and defence of property have also been singled out for change. Even critics believe that judicial interpretations of the law of self-defence have evolved considerably to reflect the modern values in our society, yet they feel the Criminal Code provisions remain complex and confusing.
With respect to this law the hon. member would like to make individual rights paramount because anyone who mentions the charter of rights and freedoms is seen as a champion of the people.
The Department of Justice has expressed that when dealing with proposed changes to the Criminal Code section on the legal defence of provocation it must be remembered that any proposals for law reform must be consistent with the Canadian Charter of Rights and Freedoms. However, if one gets bogged down with the issue of individual rights it is easy to forget the rights of the community.
As I mentioned, if Canadian society allows itself to make sweeping changes to the Criminal Code to appease the concerns arising from individual cases then the Criminal Code will constantly be at the mercy of popular will of the day.
The popular will of the day does not take into account the rights of minorities. The popular will of the day does not allow for unpopular individual judicial decisions, even if these decisions will have a positive effect on the greater good of society as a whole.
Perhaps such foresight requires the years of training and non-partisan conduct that we see in the judicial system. Judges have the wisdom from years of service. They have the knowledge of legal precedence. They have non-partisan opinions to allow for the proper interpretation of the Criminal Code.
In dealing with the defence of provocation the Department of Justice report states:
—defence of provocation is made available to excuse outbursts of violence in response to non-violent as well as violent acts is considered by many to be a fundamental shortcoming in the law of provocation. Many critics claim that this assumption is based on a model of male aggression that is no longer appropriate...provocation provides an example of the law's failure to grapple with the problem of male anger and violence against women in the domestic sphere...The law of provocation focuses on the behaviour of the victim, whose behaviour does not have to be unlawful or even deliberately insulting so long as it is characterized as wrongful in the prevailing cultural climate.
Issues dealing with the legality involved in the interaction between men and women is in a constant state of flux as society works toward the creation of a level playing field. Thus we can either change the law as frequently as society changes or we can rely on our capable male and female judges to interpret the current law.
The report of the justice department states that the purpose of our criminal justice system is to protect and ensure the safety and security of all members of Canadian society. The Criminal Code sets out legal limits on behaviour by describing criminal offences such as assault and murder. No less important, the code also sets out certain defence that may be used by accused persons to excuse or justify their behaviour.
This is the law of the land. It is an effective law because it allows for our honourable judicial system to interpret the code and make decisions which effectively apply in varying and multifaceted cases that the courts would see in a such diverse multicultural country. Allowing for changes in the Criminal Code is a simplistic and potentially dangerous solution to a very complex problem.
We need to have faith in the judicial system and not throw out the law simply because of individual cases that may gain popular support at a given time. In the case of unpopular judicial decisions which the public may feel are unjust the principals always have the opportunity for appeal. Therefore the PC Party does not support the abolition of the Criminal Code section allowing for the legal defence of provocation.