Debates of May 11th, 1999

Committees Of The House

[Some hon. members]

Agreed.

(Motion agreed to)

Business Of The House

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

Madam Speaker, again there have been consultations among the parties, including at the House leaders meeting, and I think you will find unanimous consent for the following motion dealing with the fact that the day we return after the break is a Tuesday. If members realize that they will understand the motion. I move:

That, on Tuesday, May 25, 1999, the hours of the sitting of the House and the order of business shall be as provided in the standing orders for a Monday.

[The Acting Speaker (Ms. Thibeault)]

Does the hon. parliamentary secretary have the unanimous consent of the House?

[Some hon. members]

Agreed.

(Motion agreed to)

The House resumed consideration of Bill C-78, an act to establish the Public Sector Pension Investment Board, to amend the Public Service Superannuation Act, the Canadian Forces Superannuation Act, the Royal Canadian Mounted Police Superannuation Act, the Defence Services Pension Continuation Act, the Royal Canadian Mounted Police Pension Continuation Act, the Members of Parliament Retiring Allowances Act and the Canada Post Corporation Act, and to make consequential amendments of another act, as reported (with amendment) from the committee; and of Group No. 2.

Public Sector Investment Board Act

[Ken Epp, Reform, Elk Island, AB]

Madam Speaker, I appreciate the opportunity to begin my speech today and I suppose I will be able to continue it the next time we resume.

I certainly echo the sentiments that have been expressed by many members here today. It is regrettable that we do not have an opportunity both to debate the issues that are before us in the House, but also to enter into a full debate with Canadians across the country, the people in our ridings. We should be asking them how they feel about the pension plan, the allocation of the funds and the Liberal government.

Even though we know the funds are there as a joint venture of contributions by the members who are in the pension plan and by the taxpayer as their employer, it is regrettable that the government chooses to simply take all of the money and not give back a part of it.

I find it interesting, for example, that we had a bill not long ago sponsored by the Minister of Finance in which the question of pension fund surpluses for the private sector came up. In that legislation, an agreement had to be reached before the pension money could be divided up. Clearly neither side would get 100% in that because the other side would not agree to it. Why can we not have something like that here? It is because the government is so stubborn that it will not consider that we need to debate and amend the bill so that it is consistent with the wishes of Canadians.

Speaking of the wishes of Canadians, I want to get to the topic of this particular group. The amendments in Group No. 2 primarily have to do with the definition of the surviving spouse. This is being changed in all of the acts which are affected by the superannuation procedures of the employees of the government.

This change in the definition of spouse just sweeps across a whole bunch of different acts in a very pervasive way. I know there are some who will say that this is not what is being done here. They will say that they are not changing spouse, they are just adding a definition of a survivor to it. The fact of the matter is that it is effectively being changed. This is quite contrary to the wishes of Canadians. It is certainly contrary to the wishes of the people in my riding. It is contrary to the wishes of people in the House.

I remember shortly after the election in 1993 we had a debate in the House on a private members' motion. The motion dealt specifically with benefits for partners in a same sex relationship. The motion was soundly turned down.

Madam Speaker, I see you are giving me a signal because it is 5.30 p.m. I presume I will be able to finish my speech when this resumes.

[The Acting Speaker (Ms. Thibeault)]

The hon. member has seven minutes left in his speech.

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.

The House resumed from March 16 consideration of the motion.

Criminal Code

[Sue Barnes, Liberal, London West, ON]

Madam Speaker, I am pleased to take part in the debate on this motion. I know the member for Yukon has worked very hard on raising the profile of this issue and adding to the very important debate in the House. She has also worked on talking to members across party lines about the need to get at the reality in a modern context in terms of a section of our current Criminal Code.

Going back in history is relevant to a discussion of this section of our code, which in essence had its history hundreds of years ago. It was based on a concept of honour at a time when men could treat women as property, at a time when men could defend the honour of their children having been molested, specifically sons being sexually assaulted. It has a historical context which in reality is not as relevant in today's society.

There is a modernization. When our Criminal Code was codified in 1892 this section was included. There has been discussion over the years. I believe this section should be looked at when we talk about the defences of provocation and self-defence. These two issues are linked in my mind.

Around 1998 the Minister of Justice had the Department of Justice start consultations across the land on this area of the law, this specific section. They are still ongoing. I believe that discussion is necessary. When I originally looked at this section I thought it was fairly black and white and tended to agree with the hon. member who presented the motion.

However, what I am hearing in my investigation is that some of the consultations are still ongoing and different groups are not reaching a consensus of opinion. In other words, a process is under way that will address some of these issues. I think that process has already shown—and I believe the Department of Justice and the Minister of Justice would agree—that some of the criticisms enunciated in the House and levelled at this section would be valid criticisms.

A review of Hansard and the previous hour of debate on the motion would also find that there are other views that raise different arguments in relation to this section. The courts have been more likely to use this in a situation where instead of a man's ability for action, as in the argument of the hon. member, there is the passing of violence against an individual out of anger or frustration or a sense of honour that has been hurt in some way. It is now the opposite. It could be used more as a defence realistically when there is continuous provocation to such an extent that somebody loses actual control.

This is a complex area. It is not simple. It is certainly not black and white. At the end of the day this is an area in which I welcome constant and continuing vigilance. I would like to see some reform on this section. I would also like to see that reform come at a time when the consultation process has been completed and all various options have been put on the table for us to evaluate together. I would be supportive after hearing especially from the equality seeking groups across the land who are coming to the table and discussing this as the consultations go forward.

It is necessary that Canadians realize that just because something is old it is not automatically wrong. Something that has a lot of history can be looked at with an understanding that when we move to eradicate it, it could have repercussions or different ramifications in areas which have not yet been thought of. Some of the self-defence now is more likely for instances where women are responding in a loss of control to a situation where over a long period of time there has been assault by men against women in a household and someone loses control for a moment and acts out of anger. I could see that happening if anyone came across someone attacking a child of ours or a child of the community.

We should not excuse violence. We should never excuse violence, but I think there has to remain some flexibility of an understanding that human beings are fallible. I would certainly want a very high test level.

In our review of the cases in this section that in some cases the judge felt this defence was not available. It really is case dependent, factual dependent. It provides for a level of flexibility in our criminal law, but it is one of those areas where there is no excuse for violence. If we go from that position, I think there is a lot of value in laying this issue before us today.

I commend the hon. member for her work on the motion. I would look forward to a time where I could stand in the House and support a bill that would modernize this situation. Before I do so, as I say, in fairness to all potential situations I would want to have all options laid before me.

I urge those conducting the consultation process inside the Department of Justice that if it is being done at a pace which has not been as rapid as it could be, this motion gives some emphasis to pushing the process along so that we can come to a point within parliament where we can be looking at modernization of the particular section.

I do not wish to prolong this debate by repeating myself. I think I have laid where I stand clearly on the table. It is from a viewpoint of not trying to sit on the fence but just saying at this point in time I will not support the motion because I do not feel that the consultation process has been finished.

I am at this stage glad that there is one in place. I would like to hurry that process along so that at a future date within this session of parliament I would hope we could be looking at the issue and seeing at that stage where informed decision making should stand.

[John Reynolds, Reform, West Vancouver—Sunshine Coast, BC]

Madam Speaker, it is a pleasure today to speak to Motion No. 265 which calls for a legislative committee to be established to prepare and bring in a bill in accordance with Standing Order 68(4)(b) to abolish the legal defence of provocation contained in section 232 of the Criminal Code.

The member for Yukon has been forthright in stating the genesis of this motion. I can understand how she may be motivated by the tragic case of Susan Klassen who died at the hands of her husband.

On the surface it seems easy to remedy a situation of this nature. It is quite human to perhaps strike out and fix it in one fell swoop. I regret I cannot subscribe to one fell swoop. I cannot support the outright abolition of section 232 of the Criminal Code.

As I understand it, section 232 has remained virtually unchanged since 1892 which to some may say it is time for a change. On the other hand everything old is not necessarily out of date. Also as I understand it, in criminal justice judges and the courts apply certain flexibilities and interpretation which help to keep the Criminal Code a fluid document.

As my colleague from Yorkton—Melville has so cogently pointed out during earlier debate, the application of the defence of provocation has not remained static. He went on to say that many cases before the courts set legal precedents to determine the sufficiency of evidence to raise the defence, the nature of the object of test of the term ordinary person, the instructions or charges of the jury, the applications of this defence to attempted murder, the definition of self-induced provocation, and constitutional considerations. In short, section 232 has been in constant scrutiny, interpretation and change. This is good. It says the law is not static.

Previous speakers to the bill have spoken about the complexity and controversial nature of section 232, but that in itself should not lead to abolition. As the section reads, culpable homicide may be reduced to manslaughter if the person who committed it did so in the heat of passion caused by sudden provocation. For the provocation defence to be successful, there must be a wrongful act or insult. The act must be sufficient to deprive an ordinary person of self-control. The accused had to act in the heat of passion. There had to be no time for the accused to cool down.

This seems to be quite a comprehensive set of guidelines and despite the complexity there seems to be enough caveats to ensure it passes some sort of litmus test for its use.

We must remember that if the defence is successful it does not mean the accused walks. In fact he or she can still be convicted of manslaughter and face a maximum penalty of life imprisonment. Nevertheless certain cases have given rise to concerns regarding this section and it is currently under review by the justice department.

In June 1998 a discussion paper on provocation was released by justice. It was to form the basis of a public consultation. At this point submissions by groups and individuals are still being reviewed.

This discussion paper asks the public for input on nine options with respect to the defence of provocation. Allow me to identify these options: to abolish the defence of provocation, to reform the defence of provocation by removing the phrase in the heat of passion, to replace the term wrongful act with unlawful act, to remove the ordinary person test to reflect the mix subjective-objective test, to reform the defence of expanding the suddenness requirement, to reform the defence so that it is not available in a case of a spousal homicide, to reform the defence so that it is not available in a case where the victim asserts his or her charter rights, to reform the defence to limit it to situations where excessive force was used in self-defence, and to leave the Criminal Code provisions on the provocation defence exactly as they are.

I ask whether these options as a result of input gathered by the department have been reviewed sufficiently as the causes to abolish section 232. I think not and I think the abolition option is a bit premature.

Unfortunately the issue of provocation defence has taken on a singular gender oriented, one dimensional focus. As was stated in the government's discussion paper, the defence of provocation might be useful for women in situations of domestic violence who kill in self-defence but with excessive force in response to physical or verbal abuse. It seems to me it would be dangerously presumptuous to expunge section 232 before we at least review the options in a lot more detail.

I must agree with the hon. member for Pictou—Antigonish—Guysborough, formerly a crown prosecutor, who cautioned against taking a single case in isolation and using it as a motivation to entirely change the law. If this were the only mitigating factor to amend a section of the Criminal Code, we could find one case for each section of the Criminal Code and have a Criminal Code in perpetual motion and change. This seems a bit frivolous.

The Department of Justice is now reviewing the options which in the final analysis we hope will lead to a consensus of the view of interested parties. Perhaps we should conclude that review and see what the justice department has to say before we go headlong into a complex area of law with interconnecting elements in other sections of the Criminal Code.

I am not fighting a change by opposing Motion No. 265. I am opposing precipitous change, premature change, and change to suit just one case. This is not how our Criminal Code evolved. I do not support incomplete review. Let us face it. Too often politicians are accused of acting before we think.

I am not diminishing the passion and legitimate concern that the member for Yukon brings to this issue. It is a commendable initiative, but I am sensitive to quantum change before the department review is complete.

There is a lot of evidence that section 232 continues to serve the criminal justice system with merit in rendering justice. I suspect we could all pick one case where we feel some section of the code has been negligent or deficient. There is a process in our criminal justice system, by way of the courts, to deal with these situations. I do not feel that we are at a point where we should abandon section 232.

[Michel Bellehumeur, Bloc, Berthier—Montcalm, QC]

Madam Speaker, I am pleased to rise today to speak to Motion M-265 introduced by the NDP member for Yukon.

I will read the motion because it is important to know what it is all about when listening to a speech. It says this:

That a legislative committee be established to prepare and bring in a bill, in accordance with Standing Order 68(4)(b), to abolish the legal defence of provocation contained in Section 232 of the Criminal Code of Canada.

Although the motion calls for the establishment of a legislative committee, one must ask a fundamental question right from the start: should we maintain or abolish the defence of provocation contained in section 232 of the Criminal Code?

The member for Yukon already had the opportunity to give her point of view on this question. The wording of her motion leaves no doubt as to her goal, namely to strike down section 232.

During the first hour of the debate she clearly explained why she is seeking to have it struck down. No matter how legitimate her reasons are, the question remains: should we or should we not abolish section 232?

To answer this question properly, one must understand what the defence of provocation is all about, carefully choose one's arguments, and not get carried away. It is really well defined in Quebec and Canada's jurisprudence.

I will quote Mr. Justice Irénée Lagarde, the author of several criminal law papers, who gave the following definition of the defence of provocation. I will read it because it contains all the significant elements:

Provocation consists of one or several unfair acts by the victim against the accused, or one or several insults hurled by the victim at the accused, these acts or insults being of such a nature as to deprive an ordinary person of his or her self-control and push the accused to act in anger, in the heat of the moment, and before being able to calm down.

It is a lengthy definition, but it is extremely clear and it contains all the elements the accused must prove to be able to use the defence of provocation.

The criteria are very strict. In fact, it must be said that in the majority of cases that went to trial, the criteria set out in section 232 were not met and, therefore, the judge did not allow the accused to use the defence of provocation.

Before going any further, it must be said also that, contrary to self-defence, the defence of provocation cannot lead to an acquittal. It can only reduce the charge. It is only after the crown has proven all the elements of the offence that the accused can present such a defence.

The courts have widely interpreted the terms of section 232 to establish a series of objective tests that are easy to apply. These tests determine if indeed, under the circumstances, an individual acted under the impulse of provocation.

The accused must prove, among other things, that his or her behaviour was caused by sudden provocation that would deprive an ordinary person of the power of self-control. The supreme court has stated that the reasonable criteria required under section 232 calls for a test that takes into account not only the characteristics of the provocation, but also the characteristics of the person who was the object of such provocation.

The supreme court has determined that jealousy and admission of adultery are not sudden provocation under section 232.

Furthermore, drunkenness was not considered a relevant element to determine if the criterion of “reasonable person” is met under the objective test of section 232. Indeed, someone who easily loses his temper or is intoxicated with alcohol could not invoke provocation as a defence. Those who are said to have a short fuse when provoked cannot use the defence of provocation.

Moreover, it appears clearly from section 232 that the accused must not have taken time to think before committing the fatal act. Case law confirms that if the accused has had the time to cool off, he will not be allowed to use defence of provocation.

Indeed, for the accused to be allowed to benefit from section 232, the victim must not only have tried to provoke the accused but the latter must also actually have been provoked. In other words, the accused must have totally lost self-control. This is even one of the arguments that judges use in similar cases. If the accused has taken time to think, he will not be accused of manslaughter but of murder and the defence of provocation will not be allowed by the court.

The legislator also deemed it appropriate to indicate that there is no provocation if the victim is only exercising a legal right in reaction to the behaviour of the accused. For instance, a person accused of sexual abuse cannot invoke the defence of provocation because the victim hit him to defend herself. The victim has a legitimate right to defend herself. She can plead self-defence. The victim has defended herself and the accused cannot plead that the death of the victim, if there is a death, is the direct result of provocation on her part.

As members can see, the defence of provocation is not easily used. It cannot be used easily and one has a very objective test to meet before a judge accepts or refuses it. However, the hon. member has every right to condemn what appears prima facie to be unjust, that is allowing a guilty person to benefit from a reduced sentence.

Indeed, we can easily understand why section 232 of the Criminal Code raises concerns among people. It is absolutely normal for people to ask why favours should be granted to individuals who have been found guilty of murder, because this is where the defence would apply.

Section 232 of the Criminal Code must not be seen as a sop to criminals. Criminal law condemns antisocial behaviour. The Criminal Code identify actions that do not meet with the community's approval. It must not be forgotten that these actions are committed by men and women, human beings with changing moods who are subject to intense emotions and who sometimes act instinctively and in the heat of the moment.

But it would be far too easy to argue that people who commit crimes of passion should be completely exonerated because it is sometimes normal to react without thinking. That is why section 232 of the Criminal Code provides for a reduced sentence rather than acquittal.

In short, while it is important to consider the relevance of section 232, I do not think we should abolish it as Motion M-265 proposes.

The defence of provocation is an extremely complex process, which may be justified in the context of a free and democratic society. This does not exclude, however, the fact that we must be sensitive to its overuse. At the moment, however, as I have said, the judges are making very limited use of it. An objective test is applied rigorously by all the courts. I think our judges are sufficiently on the watch.

There is enough jurisprudence and doctrine in this regard to make good use of this defence.

[Mark Muise, Progressive Conservative, West Nova, NS]

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.

[Peter Stoffer, NDP, Sackville—Eastern Shore, NS]

Madam Speaker, I rise with great pleasure to discuss the motion of my hon. colleague from Yukon, Motion No. 265.

I will read it again for the House to put it on the record:

That a legislative committee be established to prepare and bring in a bill, in accordance with Standing Order 68(4)(b), to abolish the legal defence of provocation contained in section 232 of the Criminal Code of Canada.

I have always respected the views of other parties, especially those of the government, the Reform, the Bloc and the Conservative Party, but it is amazing to listen to the Reform Party and the Conservative Party. They are the ones who are on record as wanting to lower the age in the Young Offenders Act down to 10 years. Now they are concerned about eliminating a provocation example for the murder of an individual.

Allow me to read some paragraphs regarding two cases. These will illustrate the reasons the hon. member for Yukon brought the motion forward. Listeners may want to turn off their television sets because it is not very pretty:

This motion came on the heels of the Klassen trial's outcome. It involves a murder that took place in Yukon and had outraged Yukoners and Canadians nationwide. The main cause of this public outcry in the Klassen case was the injustice of the sentencing.

This is exactly what the hon. member for West Nova said was there to protect us. It continues:

Ralph Klassen who openly admitted to having strangled his wife (Susan) to death when she tried to end the marriage, was sentenced to only five years in prison. He was charged with manslaughter. This lowered his sentence to five years, or less if he gets parole. Unfortunately there is no lack of examples which resemble the Klassen case where a person kills another human being and receives minimal punishment. One may recall the B.C. case involving Bert Stone, a man who had stabbed his wife 47 times, put her body in a toolbox and then went to Mexico for a month. For this he received a sentence of four years in jail. He had been able to successfully prove that his wife had provoked this violent behaviour by verbal insults delivered over a four hour drive.

It is a one sided debate. The fact is this woman is dead. She cannot rise from the dead and present her case to the courts. The courts have only one person's view on the evidence. The courts took it and gave the man four years in jail, which means with good behaviour he is out in a third. What kind of signal are the courts sending to women, to the defenceless, to seniors, and to young people?

It is quite obvious by the tone of the other three opposition parties that the motion will not go very far. The member for Yukon has raised the issue in the House exactly where it should be. Laws in the country should be made through the legislative process, through parliament, for judges to interpret. It is most unfortunate that the judges in these two particular cases, and there are other examples, have literally given people their walking papers after committing such violent crimes.

In Beaver Bank in my riding a gentleman has received numerous drunk driving charges. I believe on his eighth one he was finally successful in killing someone, a young 18 year old woman who had her whole life in front of her.

What did he get? It was the largest sentence ever handed out for a drunk driving charge: 8.5 years. After only 18 months he was given three days of parole on the condition that if he were a good boy he would be allowed out. This man received eight charges for drunk driving. He received an 8.5 year sentence, the most ever in Nova Scotia, and after 18 months he got three days of parole. Can we imagine what the parents of that child are going through? Where is the justice in that?

Allow me to read a couple of other paragraphs to illustrate the point that my hon. colleague from Yukon is trying to get through. The first one reads:

One of the major distinctions that can be seen for our society is the quest to preserve human life. The defence of provocation came into being at a time when a life came second to an insult of honour. This way of thinking may seem barbaric but this defence has been repeatedly used, even by recent killers to “get away with murder”. In essence it is a licence for violence. By abolishing this defence we would be sending out a clear message regarding murder. Namely, that excusing murder has no place in our society and that violence cannot be used as a response to a non-violent act, a legal act or an insult.

This means the defence can be used in the interests of the killer to have a secure murder charge. In this manner the murder charge can be lowered to manslaughter which carries no minimal sentencing time. This leaves the sentencing of these crimes to the discretion of the judge.

There is also the matter of the definition of provocation as set out in section 232, which can be seen as forming the core of the defence of provocation. It reads as follows:

—a wrongful act or an insult that is of a nature to be sufficient to deprive an ordinary person of the power of self-control. This does not mean that the wrongful act or insult has to be illegal, simply that it was enough to cause someone's rage to explode and to strike out. It is arguable that no definition of insult or wrongful act can justify someone killing another even at the point of human weakness. Revisiting the Klassen case discussed at the beginning, the provocation of the husband was his wife was trying to leave the relationship.

There was obviously a reason she had to leave and it was probably a very valid one. The paragraph continues:

Already separated from her husband, Susan Klassen indicated that she wanted to end the marriage and to move on with her life.

I may point out that a person who is killed is not a special interest group. A woman who is abused by her husband or by the system is not a special interest group. The special interest group in this particular case, as my colleague from the Conservatives was mentioning in this case, is the murderers. They are the special interest group. They are the ones who put forward their defence to the judges because the woman or the person they murdered is not there to defend themselves. It continues:

No matter how she phrased this, did she deserve to be strangled to death by her spouse? Couples end relationships every day. This decision has become a common occurrence but killing a partner is not a natural outcome of this decision. Killing due to racial slurs, homophobic tendencies or any other prejudice, however mean spirited, should not be enforced or supported in our criminal system. By abolishing the defence of provocation there would be a concrete reinforcement of the notion that killing in retaliation is an illegal act.

The fact is there are too many objective elements in this defence, each of which is at the mercy of countless interpretations.

It is also important to note that the case only brings forth the stories of the killers. The courts only hear their version of what happened and how they were the victims of insults and wrongful acts and therefore forced to kill. Imagine that. They manage to turn it around and say they are the victims when in actuality the dead woman in this case is the real victim.

Another side of the story remains silent as judges and juries decide if the killer will be forgiven for the murder and given a token prison sentence. Let us vote to eliminate this unjust defence which promotes violence and inequality.

I also wish to make a personal note and speak as the father of two young girls, a husband of a loving wife and a brother of four sisters. The fact is that violence against women continues today as much as it always has. Imagine standing in the House of Commons and honestly saying that he was a little ticked off, a little angry, but that was okay.

Imagine if the Littleton, Colorado, event happened in Canada as it did in Taber and the excuse used by the young killer was that they teased him and upset him? Imagine if the judges said that was a valid defence and he received a minimal charge? What would the parents of the victims say? What message is being sent out?

The opposition is correct when it says that defence issues and legal issues are very complex and cannot be based on emotional rhetoric. I agree. This is why the hon. member for Yukon has asked for a legislative committee to be established. Although her purpose is to get rid of the legal defence of provocation, she is a very reasonable, understanding and intelligent woman. If the legislative committee agrees with certain changes to the act, she would support it because it would be an all party committee.

I cannot help but think how great it is that the hon. member for Yukon has raised this very serious issue in the House for debate so that it can be further debated within committee and within the justice department.

[Bryon Wilfert, Liberal, Oak Ridges, ON]

Madam Speaker, I congratulate the member for Yukon for bringing Motion No. 265 to the attention of the House.

The Minister of Justice is fully aware of the criticisms of the law and the controversial cases that tend to promote public outrage. My colleague across the way from Sackville—Eastern Shore gave us a few examples.

The minister accepts the merit of many of the criticisms and is committed to reforming the law of provocation. Indeed the Department of Justice has been expending a lot of energy and resources reviewing the law, as was noted earlier, and exploring different options for addressing the concerns raised through consulting with very important groups such as the Law Reform Commission of Canada, individuals, and provincial and territorial colleagues.

The Department of Justice released a discussion paper on the law of provocation in the summer of 1998 which formed the basis of public consultations. Abolition of the defence of provocation is one of the three options being considered by the department.

It is important to note that the consultation paper also focused on the law of self-defence which is integrally related to provocation as well as the defence of property. This consultation process is still under way and for this reason the minister cannot support this motion as it is worded at this time.

As the Department of Justice has determined and as it has heard from many groups, this matter is very complex. We see that in the comments made here in the House today. Any change could clearly have a significant impact. As a result, the consequences of reform must be carefully considered before the best possible option is brought before the House for consideration in the form of a bill.

When the original defence of provocation was developed hundreds of years ago in England, it was founded on the social reality of the time that men could be partially excused for killing if in so doing, they were defending their honour either in the context of a spontaneous fight or upon discovery of their wives in the act of committing adultery, or discovery of someone in the act of sodomizing their son. The original defence was based on the concept of honour and in part on what is now clearly the discriminatory and offensive idea of male proprietary rights over women.

Provocation was actually relatively limited at that time. It was only in the very precise circumstances I have just noted that the partial excuse could be raised because it was felt that although a provoked killer deserved to be convicted and punished, he did not deserve to be put to death, which was the penalty for murder at that time.

When Canada codified the criminal law in 1892, including the law of provocation, the partial excuse was expanded to allow for partial mitigation for a killing provoked by a wrongful act or insult which allowed for a vastly broader array of circumstances to amount to provocation that had been considered under the common law.

The modern law is based on the rationale that the law should make some allowance for human frailty where a person is provoked beyond the ability to exercise self-control by an act or an insult that would have caused an ordinary person to also lose control.

The defence is meant to provide a measure of compassion and flexibility where a person has killed while under extreme psychological or emotional stress or anguish. It has built-in protections, such as the objective ordinary person test designed to ensure that a person is only excused for reacting to something that an ordinary person would also have reacted to. The provocation must be something of such a nature as to be sufficient to deprive an ordinary person of the power of self-control.

This assessment has to be made on the facts of each case. For instance, witnessing an attack on a person's child could be something sufficient to deprive an ordinary person of the power of self-control.

The defence is no longer explicitly based on offensive and discriminatory notions of honour, or men's proprietary rights over women. However, despite its modern rationale and built-in safeguards, it can certainly be argued that the modern defence has retained in part its profoundly inappropriate historical foundation, as seen by the way in which the defence has been applied and accepted by some courts.

The essence of the criticism of the hon. member for Yukon and others is that provocation gives a credit for angry violence, in particular violence by men against women and devalues human life by minimizing the seriousness of homicidal violence in response to common everyday and lawful acts such as leaving a relationship, insulting someone, or expressing a difference of opinion.

This criticism is understandable. We have to question how effectively and fairly the law protects Canadians and what values the law is upholding when it discounts a killing simply because the killer was angered by the victim's words or gestures, or departure from a relationship, or even repeated nagging.

As the hon. member for Yukon pointed out, killing in the domestic context should receive a stiffer penalty, not a more lenient one. On this point, I would like to add that the government agrees and has enacted section 718.2 of the Criminal Code which specifically requires the judge to consider the abuse of a spouse as an aggravating factor for sentencing purposes.

The hon. member for Yukon was eloquent and indeed passionate in her criticisms of provocation in her speech introducing the motion. Again I congratulate her. She focused our attention on the cases which cause the most trouble with the defence. These problems cannot be ignored or overlooked.

However, the speeches of other hon. members reveal other sides to this debate. We must also be clear that provocation is not accepted in every case in which it is alleged. In many cases it is rejected by the judge and not even given to the jury to consider.

As another hon. member who spoke to this motion mentioned, the defence has been virtually unchanged since 1892. A law of such long standing must be carefully studied before the House decides to abolish it since such a change could have many consequences.

Another member pointed out that while some cases clearly illustrate a need to reform provocation, the defence of provocation provides a concession to human frailty that may be warranted or appropriate in certain other types of circumstances. The member also referred to the fact that provocation, like other laws, is subject to constant interpretation by judges who are in a very good position to shape the law based on actual cases and their perception of justice and fairness.

The need for open debate and caution cannot be overstated. While it may appear clear to some that the defence must be abolished, this view is not shared by everyone. Some groups take the opposite position, recommending further expansion of the defence on the basis that human frailties should be recognized by the criminal law. Others still would prefer to reform the defence in some way that it is not available in some types of cases, but it is still available in other circumstances where there was widespread agreement that a killing was partially excusable given some extreme provocation by the victim.

Even equality-seeking women's groups have changed their views about what to do with the defence of provocation in recent years. It is simply not the case that there is consensus as to the best course for reform.

Basically, reasonable people disagree about the best possible solution and that is why the Department of Justice determined the best course of action was to proceed in the prudent manner which I have outlined.

I would suggest that this is premature. I note the passion with which the member has presented her case but I think we should let the course of action as outlined continue. Then appropriate amendments which would reflect the comments made in the public consultations can be brought forth to the House.

[Bev Desjarlais, NDP, Churchill, MB]

Madam Speaker, I had the opportunity to listen to the debate from all the different parties this evening. I have to admit it was one of those times when it seemed that there was a fair amount of thought and conscious effort made to consider the reasoning behind the motion put forth by my colleague from the Yukon. That often does not happen in the House. I am sure among ourselves we recognize that and I am sure Canadians recognize that.

From my perspective on this, it was interesting to note that this was one time when I heard the Reform member talk about a need to be reasonable in the approach to justice issues and not jump on one incident. Often that is not the case with the Reform Party. I was very conscious of the fact that there seemed to have been a little more in-depth feeling going into the remarks and consideration of the whole process of a justice bill or a justice motion.

As has been mentioned, it is very complicated. We do not always see the whole picture as we discuss things in parliament, and Canadians do not get the whole picture with each case when they hear what the media has to say about it. The sad reality of that is that Canadians have lost faith in the justice system. They have lost faith in the laws. They see situations such as the Klassen case and hear what has happened. There seems to be no reasoning behind how someone can get away with that kind of an act.

I listened to the hon. member from the Reform Party whose son was killed. I understand his passion. How can he not want to see change so that kind of incident will never happen again? And rightfully so. However, we need to be very conscience of all the ramifications.

What has happened is that there is no faith in the Canadian justice system. The delays with the justice department on a number of issues have resulted in that lack of faith when instances like the Klassen case come up. Too often it becomes the case that offenders get out of jail ahead of time or are released and then they kill someone. People are losing faith. When it takes time for a process to go through the justice department, the committees and everything else, it seems like these issues are always on the back burner.

Had my colleague not brought this issue up, how many of us would have had any thought or discussion about it? How many Canadians would even hear about it? It would sit in some committee or at some back door. It would get a little bit of advertising that there was going to be a hearing here or there, but it would never ever get discussed.

In spite of all the concerns that everybody has, it is extremely important that more emphasis be put on the issue. The defence of provocation has been used in situations which are unconscionable to accept. I was not going to mention the recent shootings but my colleague from Sackville—Musquodoboit Valley—Eastern Shore mentioned it. It should not be perceived as being a crass portrayal.

When the Littleton shootings were first mentioned I was conscious and very aware of the fact that so many of the students from that school stated their caring for the victims but also for the two young people who had committed the crime. They stated their concern over the attack that had taken place, the name calling, the verbal things and that they were not a part of it. They were sorry they felt that way. What my colleague mentioned is true. Are we accepting that as a defence of provocation? It cannot be.

There are faults within the system which have to be addressed. I want to thank my colleague. I encourage the justice minister to ensure that more effort takes place and that there is speed in reviewing the defence and the whole issue. Canadians need to have faith in the justice system and the laws. We are failing to give them that with the way things are happening now.

[The Acting Speaker (Ms. Thibeault)]

The time provided for the consideration of Private Members' Business has now expired and the order is dropped to the bottom of the order of precedence on the order paper.

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

[Bill Casey, Progressive Conservative, Cumberland—Colchester, NS]

Madam Speaker, I want to bring to the attention of the Minister of Transport again the Kelowna air traffic control tower which was deemed unsafe in 1984.

I would like to quote from the Department of Transport report: “Due to the location and/or the height of the control tower, portions of the runway and taxiways are not visible. Air traffic controllers are supposed to control the traffic on the runways that they cannot see”. The inspector went on to say: “A runway encouraging going unnoticed is now a major safety concern. The margin of safety has been jeopardized and restricted line of sight visibility is a major safety concern”. His manager said “The line of sight difficulties have been recognized as a problem at Kelowna and the problem must be addressed”. This is dated November 4, 1987.

Then we move to another Department of Transport report dated October 4, 1989. The Department of Transport then notified the manager of the Kelowna air traffic control tower that they were only allowed to operate on a temporary permit and that the waiver was conditional on tower replacement documentation being formulated.

Then, on September 21, 1989, another report was sent from the Department of Transport in Ottawa to the regional office in Vancouver, which brought up again the line of sight waiver at Kelowna airport and stated that it must be emphasized that clear lines of sight are of prime importance to the provision of safe air traffic control services and that this decision was being taken with much reluctance.

The Department of Transport was saying that it was allowing the airport to continue operation with much reluctance. It was saying that the waiver was conditional upon immediate action being taken to produce approval documentation for an appropriate tower replacement.

That was 11 years ago and still the tower has not been upgraded, addressed, repaired or replaced. Since then new buildings have been built. New hangars have been built surrounding it, blocking the runways even more, and traffic has increased dramatically. Not only has air traffic increased, but the planes are larger, creating more difficulties. If it was not safe 11 years ago and nothing has changed, it cannot possibly be safe now.

The minister has proposed a video system such as that used by the Los Angeles airport. This is the second time they will try this. The first time they tried a video camera they put it in and it failed, so they took it out. Now, because of the initiative of bringing up this old report, they are going to try it again.

I respect the effort to try to resolve the issue, but part of the reasoning they used in justifying the video cameras was that they are used at the Los Angeles international airport. They have said this over and over again. However, I talked to the air traffic controllers in Los Angeles and they do not use video cameras to see the runways. They do have them, but they are for reference only. At all times air traffic controllers at the Los Angeles airport can see the runways. They cannot in Kelowna. They are two completely different situations. The video cameras are for reference only and for parking on aprons in Los Angeles. In Kelowna they propose to use them for actual traffic control on the runways. It is not the same thing and it is not safe.

Considering the fact that video cameras have failed before, and considering that they are not used in Los Angeles for air traffic control, will the minister now commit that if the experiment with the video cameras does not work and the situation is not safe, as it has been deemed in these three reports, that a new tower will be constructed and the minister will take action to tell Nav Canada to stop the delays and to stop fooling around? This is a safety issue. Will he tell Nav Canada to put safety first and instruct it to build a new tower?

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

Madam Speaker, I am pleased to have the opportunity to respond to the matter raised by the hon. member for Cumberland—Colchester regarding the air traffic control tower at the Kelowna airport. I speak on behalf of the Parliamentary Secretary to the Minister of Transport, who is unavoidably absent.

I would like to emphasize that Transport Canada no longer has an operational role with respect to the provision of air traffic control services in Canada. Nav Canada is now responsible for those services, including the operation, location and construction of air traffic control towers.

I would like to assure the House that Nav Canada applies air traffic control procedures to address visibility limitations such as those at Kelowna and Transport Canada is satisfied with the corporation's action to mitigate any potential safety risk until a more permanent solution is available.

I would like to point out that the airport operator is expanding the apron parking area. Construction has begun and this will contribute to alleviating the obstruction of views caused by the parking of large aircraft.

In the longer term, Nav Canada is continuing its efforts to install an effective video system and is commencing feasibility studies for the location of a new tower.

The Minister of Transport continues to be responsible for safety oversight and the hon. member may be assured that Transport Canada will continue to monitor the Kelowna airport as part of the department's ongoing airport inspection program.

[The Acting Speaker (Ms. Thibeault)]

The motion to adjourn the House is now deemed to have been adopted. Accordingly, this House stands adjourned until tomorrow at 2 p.m., pursuant to Standing Order 24(1).

(The House adjourned at 6.34 p.m.)