House of Commons Hansard #40 of the 39th Parliament, 1st Session. (The original version is on Parliament's site.) The word of the day was abortion.


Government Operations and EstimatesCommittees of the HouseRoutine Proceedings

4:55 p.m.


Charlie Angus NDP Timmins—James Bay, ON

Mr. Speaker, I share my hon. colleague's frustration that someone is missing from this room, someone who could give us answers on whether this deal is on the up and up or whether this deal should be turned down.

There is someone who is making decisions who is unelected and unaccountable. When he was asked prior to the election if he would consider putting his name forward to represent the people of this country, he said he was too busy. That man was too busy to run for office, but he was not too busy to take the free cash for life lottery from the Prime Minister of Canada to sit in that other chamber.

I believe that the day of accountable electoral reform will come and all of the friends of the two main parties in the Senate will be tossed out with their desks after them. Then we will be able to put something a little more accountable in place.

There is a major issue here for Parliament. When a minister who has control over such important decisions in terms of public spending is unaccountable to Parliament, it raises serious questions.

In light of the fact that there is a minister who is unelected and unaccountable and does not feel the need to show his face anywhere, if we could get all-party consensus, perhaps we could get a large cardboard cut-out of him and wheel it into the House so that we could ask it questions. We would probably get about the same level of answers that we are getting from his lessers right now. If we had a cardboard cut-out of the minister, at least we would know who he is. We would at least be able to put a face to the backroom deals that he is making.

Would my hon. colleague support me in bringing forward a motion to have a cardboard cut-out brought into the House each day for question period?

Government Operations and EstimatesCommittees of the HouseRoutine Proceedings

4:55 p.m.


Paul Dewar NDP Ottawa Centre, ON

Mr. Speaker, it is a superb idea and I know some kids who could help with that. Just down the way there are some kids at York Street Public School who could do that. The first day of school they do outlines of their friends.

In fact, now that I think of it, the Senate has a budget for its members and we could get the money from the senator himself to help us with this. Then we could have at least a one dimensional minister. We certainly do not have a three dimensional minister. We are not hearing anything from the minister. Maybe we could get a ventriloquist to help us out as well and we could hear what the minister had to say.

That is an excellent idea.

Government Operations and EstimatesCommittees of the HouseRoutine Proceedings

4:55 p.m.


Mauril Bélanger Liberal Ottawa—Vanier, ON

Mr. Speaker, we could also ask the government House leader to respond, as he has been responding for many others today.

I take great pleasure in participating in this debate. I will share my time with my colleague, the member for Mississauga—Erindale.

There are three or four items of importance to keep in mind in this matter. I want to briefly touch on each.

There has been reference to the 75-25 split of the federal public service in the national capital region.

I always supported this fair distribution of employees of the public service of Canada in the national capital region, between the Ontario side and the Quebec side of the national capital.

I have always worked toward this objective and I have always supported initiatives on this. Until very recently, we were getting close to the 75/25 objective, but for some time, it seems that we are moving away from it.

My first objection to the unsolicited proposal of Minto Development for the Government of Canada to acquire JDS Uniphase is due to the impact that this acquisition might have on achieving the 75/25 distribution objective.

We are talking about one million square feet, about 100,000 square metres on the Ontario side. This is a huge deal. It would cause a real setback in achieving this 75/25 objective. Before these additional 100,000 square metres are occupied and the space that is left vacant is filled, we will have a major setback in achieving this objective.

My first objection is that this acquisition would move us away from the objective and the Department of Public Works and Government Services never put forward a plan to counter this impact.

My second concern stems from the fact that the Canadian government, as the largest employer in the National Capital Region, has an obligation to be a good employer. It is also obligated to be aware of the impact of its decisions on the local economy and population.

Already, there is a disparity between the number of jobs in the east end—of the City of Ottawa—and in the west end. For example, according to the person-year data, in terms of employment on the Ontario side of the National Capital Region, there is a marked disparity between east and west, in favour of the west end, where there are far more jobs.

Acquiring a million square feet in the west end of Ottawa will only exacerbate an existing problem. The Canadian government, as a good employer, as a so-called good citizen, must carefully consider the repercussions of its decisions on the local economy and population.

Speaking of local infrastructure, it must be recognized that this disparity, putting the east end at a disadvantage, is very clear. If the Canadian government, for whatever reason, were to acquire a million square feet in the west end, it would have to come up with a plan to correct that disparity, just as we need to see a plan to correct the 75/25 disparity for the Ontario and Quebec sides of the National Capital Region.

These are two major concerns, and I would like to add a third. The government is dealing with an unsolicited proposal.

Whenever the government acquires a huge amount of space such as this one, a million square feet, 100,000 square metres, it is not a small amount of space and it has an impact on the local economy. To acquire that on an unsolicited proposal is a mistake. I believe the government has a duty to respect its own commitment of transparency and go through a public tender process.

The arguments offered by the Parliamentary Secretary to the Minister of Public Works that the government could lose this do not hold water. If it comes back that the best deal is indeed the one that Minto is putting forward on an unsolicited basis currently, then so be it. I will still say, as I have in the past consistently, and Mr. Greenberg of Minto Developments, whom I have met on this on occasion, will confirm that I have always said that it should not be an unsolicited proposal. If the Government of Canada acquires that space, it should be as a result of a public call for proposals. I know there are others in the area, both in Quebec and Ontario, who would like to bid on this. There are some in the east in Orléans, so I imagine that the member for Ottawa—Orléans would be quite interested in knowing that the government would not want to proceed with a proposal call. I believe there may even be some from Glengarry—Prescott—Russell who might have some land holdings and would be interested in bidding. I know there are some from Gatineau, Aylmer and Hull sectors who might be interested.

There would be a great advantage for the government to know what proposals are out there and let the developers sharpen their pencils and put the best deal forward. If Minto still provides the best deal in response to the needs of the government, then proceed with the proviso that public works has a duty at the same time to come up with a plan that will make sure that the long-standing objective of a 75-25 split of federal public service employees in the national capital region, 75% on the Ontario side and 25% on the Quebec side, is met. Also as a good employer, as a model citizen in this community, it should address the current imbalance between the east and the west. These are the conditions that I have always said should be met in dealing with this kind of proposal from Minto.

I also want to take a minute to comment on what the member for Gatineau said about my colleague from Hull—Aylmer. I was elected to this place before the member for Hull—Aylmer and immediately got to work with him in his capacity as executive assistant to the regional minister. I can assure the House that, even in those days, he made sure that issues pertaining to the Outaouais region were looked after. When he was elected member of Parliament for Hull—Aylmer, he joined the government caucus for the national capital region. We would meet every week. Ministers dealing with issues important to our region were invited to attend these meetings, so that we could express our views. I can assure you, Mr. Speaker, and all the people of Hull—Aylmer that the hon. member for Hull—Aylmer did not miss a chance to make demands, as appropriate, for the riding and the people he represents. So, what our colleague from Gatineau said has to be taken with a grain of salt, because it does not hold up.

I also wanted to take this opportunity to stress that one wonders who would go there. I must admit that, as the member of Parliament for Ottawa—Vanier, the riding which is currently home to the RCMP headquarters, I am somewhat concerned. The commissioner of the RCMP may correct me publicly if I am wrong, but I was told that he, the commissioner of the RCMP, was the one pushing for this deal to be closed.

The deal is all but closed. A letter of intention has been sent. In fact, the parliamentary secretary said so himself. From the moment that a letter of intention is sent, the rest, including the Treasury Board process, is a mere formality. I may be wrong. Still, the government should take the will of this House into account and wait for a vote to be taken on this proposal. I support the motion to concur in the second report of the committee, requesting that, when making or planning to make acquisitions as major as this. the government go through an open tendering process.

I will conclude on this note. Should the government go ahead with this acquisition, it would be required to indicate how it plans to achieve the 75-25 split, and to mitigate the current east-west imbalance on the Ottawa side of the national capital region instead of making it worse.

Government Operations and EstimatesCommittees of the HouseRoutine Proceedings

5:05 p.m.

Port Moody—Westwood—Port Coquitlam B.C.


James Moore ConservativeParliamentary Secretary to the Minister of Public Works and Government Services and Minister for the Pacific Gateway and the Vancouver-Whistler Olympics

Mr. Speaker, I appreciate the intervention from my colleague. As an experienced member for the region, certainly on this file, his thoughts certainly are welcome. However, I do find it curious that now that the Liberals are in opposition, they find sin in things in which they found virtue when they were in government.

We are talking about a motion which deals with unsolicited proposals to the government. As I said, of course we believe in open tendering, transparency and competition for taxpayers' dollars and contracting. There is no question about that

The member should know that the former Ottawa city hall building at 111 Sussex Drive, which is in the member's district, was appraised at $85 million and purchased by the government for $60 million, 30% below market value. Tenants there currently include: the Department of Foreign Affairs, the Canada School of Public Service, Public Works and Government Services Canada, and the City of Ottawa. This was done through an unsolicited proposal, the very process that would terminate if we took the very approach that he has spoken about in his speech.

If this is such a bad idea now, why was it a good idea when he was in government?

Government Operations and EstimatesCommittees of the HouseRoutine Proceedings

5:05 p.m.


Mauril Bélanger Liberal Ottawa—Vanier, ON

Mr. Speaker, first, to say that I take this stand because I am in opposition is absolutely and totally inaccurate.

I said to the member and I said in this House, whenever I met with Mr. Greenberg of Minto on this file, when I was in government, the conditions that I have just enumerated of a public tender process were required in order for Public Works to reach the 75-25 objective. This was to ensure that we did not exacerbate the current east-west balance but redressed it, and it would also accompany the acquisition. That is what I said then and that is what I say now, so for the member to say that I have changed my tune because I am in opposition now is totally inaccurate.

Second, the acquisition of the old city hall of Ottawa was something that the government wanted. It wanted it because it happens to be on Sussex Drive which is next to Foreign Affairs. Buying a public property from a government to a government is a totally different process, as the hon. member will know. When the Government of Canada disposes of property, it first goes to other departments, then to provinces and then to municipalities, and the reverse process occurs out of courtesy and respect from other governments.

He is mixing apples and oranges here.

Government Operations and EstimatesCommittees of the HouseRoutine Proceedings

5:10 p.m.


Peter Stoffer NDP Sackville—Eastern Shore, NS

Mr. Speaker, when referring to this government, the Conservatives always talk about openness, transparency, honesty and responsibility to the taxpayer. We hear that coming from these guys ad nauseam, but the problem is that these are the same people who, when in opposition, said that when people cross the floor, it leads to corruption of government.

In fact, the Prime Minister's words were, when he was in the official opposition and the member for Kings--Hants crossed, that anyone going over for 30 pieces of silver leads to the corruption of government, and the first thing the Conservatives did was accept the floor-crosser from Vancouver Kingsway without asking him to go back to his constituents.

They then appointed an unelected, unaccountable, Conservative friend from Quebec, who by the way could not be bothered to run because he was too busy. He had other things to do. He was appointed to the Senate as the Minister of Public Works, which means that hon. members cannot question him here in the House, which is really in itself a slam at democracy.

This is coming from the Conservatives who preach openness and transparency. The reality is that the first thing they did was break their own moral ethics in this House when they formed government.

Does the hon. member give any credence to what these people say at all when it comes to the issue of Minto?

Government Operations and EstimatesCommittees of the HouseRoutine Proceedings

5:10 p.m.


Mauril Bélanger Liberal Ottawa—Vanier, ON

Mr. Speaker, I will not make reference to the comments about the Minister of International Trade or the Minister of Public Works. I want to concentrate on the process and the substance at hand here.

The government has received a proposal. That is legitimate. Whether the government decides to act on it is the question. I am sure the member for Abbotsford, as reasonable as he is, might even agree with me that whenever the government acquires a million square feet of space, it should do so through a public tender call process.

It may still acquire it after the public tender call process because it may be the better deal. I do not know that. I do not have the details of the deal, but in terms of the transparency aspirations of the government, which the Conservatives have touted as their number one priority, it stands to reason that the government should acquire that huge amount of space as a result of a public tender call process and not an unsolicited proposal.

Government Operations and EstimatesCommittees of the HouseRoutine Proceedings

5:10 p.m.


Omar Alghabra Liberal Mississauga—Erindale, ON

Mr. Speaker, I am pleased to speak to this motion today.

Canadians expect their government and parliamentarians to manage the matters of our great nation with a high sense of responsibility and diligence. The executive branch, the government, is expected to manage the day-to-day operations while Canadians, through their elected parliamentarians, act as a sounding board and a safety valve for the government's conduct. Our democracy thrives on this dynamic and the eventual beneficiary is Canada and its citizens.

At the Standing Committee on Government Operations and Estimates, of which I am a proud member, parliamentarians have been working diligently to examine various procedures and practices to ensure that Canadians are served well.

The committee had the pleasure of inviting and speaking with the Auditor General and Public Works and Government Services officials. The committee was interested in chapter 7 of her 2006 report, which dealt with acquisition of leased office spaces. The Auditor General and her team have done extensive and excellent work on this file over a number of years, and shared with the committee very insightful and informative findings.

The committee, and any reader of that chapter, would find that there is room to improve the government's practices when it comes to acquiring office spaces. The committee was very interested in examining possible failures and identifying opportunities to enhance the expenditure of taxpayers' money when acquiring office spaces.

The committee confirmed that the government is on the verge of acquiring large office space in the Ottawa region. The government has apparently signed a letter of intent to purchase the JDS Uniphase campus in Ottawa without conducting an open and transparent competitive bid process.

Given that the committee had just heard from the Auditor General about examples of mismanaged taxpayers' money, I proposed a motion that would call on the government to perform its due diligence before acquiring any significant real estate property, such as the JDS campus, and that any decisions be the result of a competitive public tender call process.

I was pleased that the majority of the committee endorsed that motion, although I was somewhat bewildered to see my colleagues from the Conservative Party voting against accountability and transparency.

This motion intends to encourage the wise expenditure of government funds, so all options are evaluated before a final decision is made.

I recognize that there are occasions when certain situations may contain conditions and requirements that might appear unique. As someone who worked in the private sector for years, I have a great appreciation for following competitive processes when acquiring or purchasing significant products or projects. The apparent unique requirements, if they are essential to the property needed, can be described in the specifications of any tender.

Members will be surprised how many creative and useful offers will be presented. As well, a competitive process would encourage all bidders, including the apparent favourite ones, to be aggressive in their pricing when they know that open and competitive bids are being sought.

I am glad that we are having this debate right now. Even though the government has signed a letter of intent, the building has not been purchased yet. Now is the right time to ensure that this decision is the right decision that offers the highest value to Canadians.

The Liberal Party has repeatedly attempted to ask the Minister of Public Works about the government's intentions in regard to this transaction. Unfortunately, the minister does not sit in the House so he cannot answer those questions.

The motion is asking a reasonable and logical request. It calls on the government to ensure transparency, accountability and openness.

It amuses me to see my Conservative colleagues oppose this motion. They are claiming to be the champions of accountability, but their position on this motion proves what the Liberals have been saying for a while.

The Conservatives are only promoting selective accountability. They appear to be only pursuing slogans and rhetoric, “Do as I say, but not as I do”. Accountability is good for them when it does not mean holding the government to account. When real accountability and prudent management of taxpayers' money is the real issue, the Conservatives appear to be waffling.

The irony is that the Conservatives are accusing the previous Liberal government of forcing their hand to purchase this property. If that is the case, the Liberals are presenting them with a clear opportunity to enhance this transaction right now. If they truly believe that the Liberals have put them in this quandary or made errors, why do they not vote in support of this motion and blame the Liberals?

I hope that my colleagues, members of the House, including the Conservatives, join together to endorse this simple and clear motion. The motion does not prevent the government from obtaining any property. In fact, it protects it from any future accusation of lack of transparency. It might delay the decision for a short while, but it would ensure that when a decision is made, that it is the right one for all Canadians.

Government Operations and EstimatesCommittees of the HouseRoutine Proceedings

5:15 p.m.

Port Moody—Westwood—Port Coquitlam B.C.


James Moore ConservativeParliamentary Secretary to the Minister of Public Works and Government Services and Minister for the Pacific Gateway and the Vancouver-Whistler Olympics

Mr. Speaker, the motion that we are dealing with essentially calls on the federal government, not only this one but all future federal governments, to do away with the concept of accepting unsolicited proposals for consideration of a property or, I suppose, in any other aspect, with regard to getting assets for the federal government.

I am trying to be diplomatic, but the best thing I can say is, that is a profoundly stupid idea. It is incredibly dumb. In fact, the member should know that a number of federal government buildings have been purchased or leased through this process and it has led to incredible value for taxpayers' dollars.

I would encourage the hon. member to talk to the member for Kings—Hants, the member for Sudbury, and the other former ministers of public works that are on the government side. I would be more than prepared to wager with him that virtually every single one of them will tell him that this is a profoundly stupid idea, because it is.

I have already given examples before. I will give him one more. Just a couple of blocks away from Parliament Hill, 90 Sparks Street was purchased by the Crown for $60 million and it is now occupied by a dozen federal departments and agencies. Its appraised value at the time was $72 million. It was purchased for $60 million through an unsolicited process and it got value for taxpayers' dollars.

The idea of walking away from this whole approach to doing business is dumb. As I have said, we believe in competition. We believe in an open, transparent and effective tendering process. If he is condemning it in this one circumstance with regard to the former JDS building, it was his government that entered the process years ago and started negotiating on this back in 2004.

We believe in getting value for taxpayers' dollars. We do not believe in taking away options from the table for the government to get value. The member, with respect, really does not know what he is talking about here.

Having unsolicited proposals is an opportunity to get value for taxpayers if it is used in the correct manner. On a number of occasions in the past it has been and in the future it may well be, but for him to just carte blanche say it is a bad idea, is profoundly stupid.

Government Operations and EstimatesCommittees of the HouseRoutine Proceedings

5:20 p.m.


Omar Alghabra Liberal Mississauga—Erindale, ON

Mr. Speaker, I am very amused by the hon. member's remarks.

We are suggesting exactly the opposite. We are asking to confirm that any transactions, especially large transactions, conducted by the government, and regardless of who is in government, are done through an open and transparent process.

Occasionally, we may come across unsolicited bids, but by making sure that we confirm that those unsolicited bids are valid and valuable, we need to seek other bidders and other opportunities to ensure that the price we have in front of us is the right price that benefits all Canadians.

Government Operations and EstimatesCommittees of the HouseRoutine Proceedings

5:20 p.m.


Richard Nadeau Bloc Gatineau, QC

Mr. Speaker, my question for my colleague is very simple.

How would he react if a high-level official in the Department of Public Works and Government Services told him that he, the official, had carte blanche to decide whether or not there would be a call for tenders?

Government Operations and EstimatesCommittees of the HouseRoutine Proceedings

5:20 p.m.


Omar Alghabra Liberal Mississauga—Erindale, ON

Mr. Speaker, this is the way we need to react as parliamentarians. This motion calls on the government to ensure that any time it acquires any significant real estate properties, that it go through a competitive bid to ensure that we get the best value for Canadian taxpayers' money.

Government Operations and EstimatesCommittees of the HouseRoutine Proceedings

5:20 p.m.


Shawn Murphy Liberal Charlottetown, PE

Mr. Speaker, when we see deals like this going through, we invariably see a lobbyist and I understand the lobbyist in this case is Fred Doucet. Fred was around in the Mulroney years. He was involved in the airbus issue.

Does the member have any comment on the role of the lobbyists in this field and does he have any comment on the involvement of Fred Doucet in this matter?

Government Operations and EstimatesCommittees of the HouseRoutine Proceedings

June 14th, 2006 / 5:20 p.m.


Omar Alghabra Liberal Mississauga—Erindale, ON

Mr. Speaker, I want to reiterate that this is precisely why the motion is necessary. I cannot comment on the specific involvement of any individual. I do not have any specific facts.

We are trying to protect any government, including, believe it or not, the Conservative government, from being accused of lack of transparency and mismanaging public funds.

Let us have a clear and transparent process. Let us ensure all options are considered. Let us put all the specifications on the table. Let us put everything that we need, including the specifications, on the table and invite all bidders to ensure we have the best value for our money and prevent any lobbyist from favouring a proposal over others.

Government Operations and EstimatesCommittees of the HouseRoutine Proceedings

5:20 p.m.


David McGuinty Liberal Ottawa South, ON

Mr. Speaker, I would like to pick up on the comments made by the parliamentary secretary just moments ago and commend him for his efforts in defending the indefensible.

It is clear that most Canadians could be forgiven for assuming that this question of a deal with a particular property in mind, in the Ottawa area, is part of a pattern of conduct that the government has embraced very early on in its mandate.

Let me state something for the record clearly. I think all parliamentarians would join me in saying that we are trying to encourage and strengthen accountability. Most parliamentarians are working feverishly to see the accountability act pass with the right kinds of amendments. I still think Canadians could be forgiven for deducing that there is a pattern of conduct here, which is leading Canadians to ask some fundamental questions. Let me illustrate.

First, the government is wreaking havoc, for example, in changes it is making to the sole source procurement system of our country, without notice and without consultation. Many of my constituents and thousands of companies are working now in concert with the federal government, and have been for years, only to find out one morning that the sole source system, which the government is forcing down their throats, is one about which they have not even been consulted.

It has done away with the procurement strategy for aboriginal businesses. It has been silenced behind the scenes. This is again part of a pattern.

The House of Commons legal counsel has issued an opinion saying that the accountability bill is at least partly unconstitutional, but the government has not addressed the unconstitutionality of the bill.

The Minister of National Defence, leaving aside the optics of the fact that he was a former lobbyist for the defence industry, wanted to sole source and acquire $3.2 billion worth of airplanes without any kind of tendering process. He is now denying it and backtracking.

Now we have a real estate deal, a letter of intent, as acknowledged by the parliamentary secretary, and, on his behalf, the Minister of PWGSC has acknowledged it as well, but apparently there is no deal. The government is backtracking again. I think Canadians could be forgiven for deducing there is a pattern of conduct here.

The government has not learned anything from the Nielsen report in the Mulroney years. At that time, Prime Minister Mulroney asked the former minister, the member for Yukon, Mr. Nielsen, to do a major analysis of property deals with respect to the federal government because of the trying circumstances around many of those deals. This ended up causing problems for the former prime minister and his Conservative government. I really do not think the present government has read that report or understood much from it.

This is reminiscent of the comments recently made by the Minister of Transport who, in a speech in Gatineau, said that he was prepared to move an $800 million museum from my riding in Ottawa South to his riding across the river because he would exercise his political influence. He said this even though a $1 million engineering and architectural design and analysis study was commissioned by the museum, which suggested that the site the minister was targeting was not even on the short list of five. Again, I would forgive Canadians for deducing a pattern of conduct here.

Furthermore, the Minister of Transport freelanced recently on a question on the National Capital Commission, an instrumental organization in the development of this region. He said that he questioned the very existence of the NCC. There was no notice given, no dialogue, no debate, no commentary and no input. Instead of pursuing constructive reform ideas, we get a pattern of conduct that seems to continue. It is a do as I say, not as I do pattern.

Most recently we heard about the Minister of Health owning 25% of a private health care company, which he now regulates as the Minister of Health. The government, while in opposition, savaged the Ethics Commissioner saying that he was not a real Ethics Commissioner. Now it hides behind his ruling. The Minister of Health did not place his stocks in a blind trust. On the contrary, he makes a very small statement that he has no intention of dealing with the matter while he is a minister of the Crown. Again, I would forgive Canadians for deducing there is a pattern of conduct here.

Finally, the question of unsolicited proposals, allowing economic development versus value for taxpayer dollars, as the parliamentary secretary to the minister puts to the House, is frankly a mugs game. It makes no rational sense whatsoever.

Public tendering is the central building block of any procurement regime. It is the central building block of any transparent procurement regime. For a government that rode into town high on its horse of accountability, it is bewildering for most Canadians to try to understand this pattern of conduct in the short 120-odd days since being elected.

In my estimation, the motion is a sound one. I would urge all parliamentarians to support it. It really does speak now to the question of our willingness as parliamentary colleagues to address the question of transparency and accountability in a serious way.

It is very unfortunate for the government, in its unwise decision, to appoint an unelected individual, who refused to seek office in the last election, to the Senate so he could be responsible for managing billions of dollars of procurement and not be here to answer those questions.

Government Operations and EstimatesCommittees of the HouseRoutine Proceedings

5:30 p.m.


The Acting Speaker Conservative Andrew Scheer

The hon. will have 14 minutes left to continue his speech.

It is my duty to interrupt the proceedings on the motion at this time. Accordingly the debate on the motion will be rescheduled for another sitting.

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 CodePrivate Members' Business

5:30 p.m.


Leon Benoit Conservative Vegreville—Wainwright, AB

moved that C-291, An Act to amend the Criminal Code (injuring or causing the death of a child before or during its birth while committing an offence), be read the second time and referred to a committee.

Mr. Speaker, my private member's bill, Bill C-291, is meant to protect pregnant women from violence and to protect their unborn children in an attack against the mother. In current federal criminal law an unborn child is not recognized as a victim with respect to violent crimes. This gap in federal law gives rise to grave injustices.

In November 2005 Olivia Talbot of Edmonton, who was 27 weeks pregnant with her son Lane Jr., was shot twice in the head and three times in the abdomen by a long time friend. Because Canadian law offers no legal protection for the unborn child today, no charge could be laid in the death of Baby Lane.

Another pregnant Edmonton women, Liana White, was slain by her husband in the summer of 2005. Again, no charges could be laid in the death of her baby.

Many Canadians are shocked to learn that, when an attacker kills a woman's pre-born child, no charge is laid in the death of that child, even when the attacker purposely intended to kill the child. Clearly, there are two victims in such cases, and the public recognizes this.

A Robbins SCE Research poll, conducted in December 2005, found that 78% of Canadians supported a separate homicide charge in the death of an unborn child in such cases. A Calgary Herald poll, conducted on November 30, 2005, showed 82% support.

The grieving families, who have lost their loved ones in this type of crime, only too tragically recognize that there are two victims. Just ask Mary Talbot how many victims there were when her daughter Olivia and her grandson, Baby Lane, died in November of 2005.

Any pregnant woman who survives a violent attack, but loses her pre-born child, a child she wants and loves, will grieve for that child, and no one can say she grieves for that child any less simply because that child has not yet been born.

My private member's bill seeks to address this injustice by making it a separate offence to kill or injure a pre-born child during the commission of an offence against the child's mother. Let me explain how it would do that.

In current federal law a child becomes a human being only after it is born alive, and only then does it receive protection under the law. Because children before they are born are not considered human beings, in today's criminal law they receive no legal protection whatsoever. The amendment to the Criminal Code, which I am proposing with my private member's bill, would change this so legal protection would be given not only to human beings, as defined by the Criminal Code, but also to unborn children who were harmed or killed during the commission of an offence against their mothers.

My private member's bill does not change the definition of a human being. What it does is offer protection to the unborn child, despite the definition of a human being. I believe this will also provide added protection for the pregnant woman.

Note that my bill specifically states that it applies only “while committing or attempting to commit an offence against the mother”. Why is this important? Because this terminology was used precisely so abortions would be excluded. As we have seen from reports by a few extreme media, this issue is being linked to abortion. The media seems to have more concern that it somehow is an attempt to restrict access to abortion than it does about protecting pregnant women and their unborn children. The bill has nothing to do with abortion. In fact, it is the very opposite of abortion. In the case of abortion, the woman chooses the procedure.

The bill is about protecting the children whose mothers have not chosen abortion, mothers who have chosen to carry their child to term. That is why those who truly are pro-choice will support the bill because it respects a woman's right to choose to bring her child to term in a safe environment.

Some people have argued that the Supreme Court will not allow an unborn child to have legal protection under the law because the Supreme Court has said that a fetus is not a person. This is a false interpretation of the court's rulings. It is the existing law which offers no rights to the fetus and the courts have just been applying the existing law when they have made their rulings. However, the law can be changed and that is the responsibility of Parliament, not the courts, as the Supreme Court itself has said in a number of cases.

For example, in the case of Winnipeg Child and Family Services v. DFG in 1997 involving a glue-sniffing pregnant woman, the issue at hand was whether child protective services could force the pregnant woman into custody in order to protect her unborn child. The Supreme Court said that according to existing law the unborn child has no rights and therefore the woman could not be forced into custody. The court stated, “The law of Canada does not recognize the unborn child as a legal person possessing rights”.

The court went on to ask, “At what stage would a fetus acquire rights?”

The court said that dealing with such “thorny moral and social issues” is “better dealt with by elected legislators than the courts”.

The Supreme Court has clearly stated that the existing law does not offer legal protection for the fetus and that it is not up to the court to change the law in order to offer this protection. That is the job of Parliament.

My private member's bill addresses this issue in one very specific way, by extending protection to the unborn child who is harmed or injured when the mother is the victim of a violent crime, only in those very narrow circumstances.

Violence against women is a serious problem in our society and studies have shown that pregnancy increases the risk that a woman will be abused. When a woman is pregnant she is especially vulnerable because she has not only herself to protect and defend, but also her unborn child.

The Society of Obstetricians and Gynecologists says that physical abuse remains a frequently undetected risk factor in a large number of pregnancies and that violence begins or increases during pregnancy.

Canadian studies estimate that the prevalence of physical abuse during pregnancy is around 6%, which is extremely high, and that 64% of women abused during pregnancy reported increased abuse during pregnancy.

According to the Canadian Perinatal Surveillance System, women abused during pregnancy were four times as likely as other abused women to report having experienced very serious violence, including being beaten up, choked, threatened with a gun or knife, or sexually assaulted.

One Canadian study found that the most common area of a woman's body struck during pregnancy was the abdomen. The literature shows that “severe blunt trauma to a maternal abdomen has been shown to lead to spontaneous abortion, fetal death, placental abruption, preterm labour and delivery, and fetal injuries, such as skull fractures, intracranial hemorrhage and bone fractures”.

It is very disturbing that when a women is at her most vulnerable she is at increased risk of attack. This bill would act as a strong deterrent to perpetrating violence against a pregnant woman.

In testimony at a subcommittee hearing on the U.S. unborn victims of violence act, Tracy Marciniak, who survived a violent attack by her husband who killed her unborn child, said the following, “Before his trial, my attacker said on TV that he would never have hit me if he had thought that he could be charged with the killing of his child”. She went on to say, “If an attacker of a pregnant woman knows that they can get prosecuted for harming or killing that woman's child, they are going to think twice before they do it”. This was said by the victim of a violent attack that killed her unborn child.

What message are we sending to those who physically abuse pregnant women when we allow them to inflict such physical harm and even death on the woman's unborn child with no consequences whatsoever? The perpetrator will simply be charged with the assault on the woman, as if the child simply did not exist.

What message are we sending to the mother of the child when we refuse to acknowledge that her offspring growing inside of her is worthy of protection? We give more protection to animals.

Before judging that statement as being over the top, I ask members to please consider this. If a person assaulted a woman who was carrying a pet cat or dog and intentionally injured or killed the pet, the person would receive the penalty for assault against the woman plus the penalty for the separate offence against the animal, which in itself could carry a prison sentence of up to six months and a fine of up to $2,000. Does anyone really believe that it is right and just that there should be a penalty for the injury or death of a pet but not for an unborn child?

The type of law that I am proposing in my private member's bill would not only act as a strong deterrent to violence, it would not only send a strong message to society that we will not condone this type of abuse on women when they are most vulnerable, but it would also bring a sense of closure to the surviving family members because it recognizes that there are two victims in such cases. Our current law, which fails to recognize a second victim in these violent attacks on pregnant women, amounts to telling Mary Talbot that she really did not lose a grandson the day that Olivia and baby Lane died. It means that we are saying to Lane Griffith, the father of the baby, that he did not really lose a son that day but baby Lane did exist. He had a name and he was loved.

The Edmonton Journal reported that baby Lane's father talked to the belly of his pregnant fiancé every night that he could and told his unborn son how much daddy loved him. Lane Griffith and his mother, Kathy Scott, held the baby after he was removed from Olivia's womb and Kathy told the Edmonton Journal “The baby was perfect looking. He was just beautiful with nice dark hair”.

I have a photograph with me here today and I challenge everyone to look at the photo and tell me how many victims they see. A beautiful young woman lies in the casket with her baby boy whose short life was ended before he ever saw the light of day, before he ever saw his mother smile and before he ever felt his father's hug.

Our law in Canada today, which gives no recognition to the tragedy that befalls a family when they lose a beloved child prior to its birth, is outdated and heartless. Again, I refer to the testimony of Tracy Marciniak, who knows only too well what it is like to have one's pre-born child killed in a violent attack. This is what she said in her testimony at the subcommittee hearing:

I know that some lawmakers and some groups insist that there is no such thing as an unborn victim, and that crimes like this only have a single victim--but that is callous and it is wrong. Please don’t tell me that my son was not a real victim of a real crime. We were both victims, but only I survived [...] I do not want to think of any surviving mother being told what I was told--that she did not really lose a baby, that nobody really died. I say, no surviving mother, father, or grandparent should ever again be told that their murdered loved one never even existed in the eyes of the law.

I agree.

Criminal CodePrivate Members' Business

5:45 p.m.


Paul Steckle Liberal Huron—Bruce, ON

Mr. Speaker, more than a decade ago when I rose for the first time in this place as a newly minted MP, full of lofty ideals and untested enthusiasm, I verbally underscored my belief that all human life is sacred from the moment of conception to the moment of natural death.

Since that time I have been tested in nearly every conceivable manner. My perceptions and beliefs have been challenged and, in some instances, I have altered my positions in a manner that more accurately reflects evolving constituents' wishes and feedback or in a manner consistent with the ever-changing state of knowledge on a given subject.

That aside, my core beliefs or what I view to be absolute truths have stood the test of time and remain a constant factor in my voting record.

With the latter in mind, I am on my feet this evening but this time I will frame my remarks within the specific context of Bill C-291.

For many, Bill C-291 represents just another round in the age old abortion debate. It represents a nibbling away at the edges of the perceptions of the 1988 Supreme Court decision on the subject. I would reject any such notions and I challenge those people to lay solid evidence on the table here tonight defending that position, which I would believe to be rooted in specious logic.

First, to be absolutely clear, Bill C-291 is not a bill about abortion. It is a bill about protecting women from violence. To be precise, Bill C-291 is about protecting the choice of a woman to carry a fetus to full term. Surely we can agree that a woman has every right to make that determination.

Many Canadians do not understand that there are no protections in place for viable unborn children who, despite the mother's desire to carry to full term, are harmed or terminated at the hands of those seeking to perpetrate violent crimes. In some cases the said violence is committed in a manner specifically targeting the unborn child. This is astounding to me.

I for nearly 13 years have listened to some of my colleagues speak on the merits of a woman's right to choose but now I learn that some of those same people will not vote to protect the woman's choice if it involves the choice to keep her baby.

When the member of Parliament for Vegreville—Wainwright sought to defend this bill against irrational committee allegations that it was unconstitutional, he cited several instances to the committee where violent and criminal actions were perpetrated upon third party against prospective mothers who had chosen to carry to full term.

An example that has already been cited this evening is the one about Olivia Talbot of Edmonton who was 27 weeks pregnant with her son Lane Jr. In November 2005, Olivia was shot three times in the abdomen and twice in the head. Because we offer no legal protection for unborn children today, no charge could be laid in the death of baby Lane.

Another pregnant Edmonton woman, Liana White, was slain by her husband in the summer of 2005. Again no charges could be laid in her baby's death.

Many of my constituents and, indeed, many Canadians would be shocked to learn that when an attacker kills a woman's unborn child no charges are laid in the death of that child even when the attacker purposefully intended to kill the child.

To use the words of the member for Vegreville—Wainwright, his bill seeks to address this injustice by making it a separate offence to kill or injure a pre-born child during the commission of an offence against the child's mother. That offence would be the offence of which the person would have been found guilty had the injury or death occurred to the mother. In other words, the unborn child would be treated as if it were a human being and the existing legal protection already defined for human beings in the Criminal Code would apply.

The exact offence depends on what existing sections of the Criminal Code would apply under a specified set of circumstances. Just to be clear, Bill C-291 is not seeking to invent new offences. In the same vein I should point out that Bill C-291 actually excludes abortion. The provisions of the legislative proposal would apply only while a perpetrator is committing or attempting to commit an offence against the mother.

Again, Bill C-291 is not about limiting a choice but rather it is about instituting protections for women when they have decided that they wish to carry their child to term.

I also understand that some have objected to Bill C-291 because they have come to believe that the Supreme Court has determined that a fetus cannot be afforded the legal protections of a human being as defined by the Criminal Code. To that I would again say respectfully that notions to this effect would be inaccurate.

Currently, section 223(1) of the Criminal Code of Canada defines a human being as a child that has completely proceeded in a living state from the body of its mother. Furthermore, section 222(1) of Criminal Code of Canada defines a homicide as the act perpetrated by a person when directly or indirectly by any means causes the death of a human being. To me this seems simple enough.

Currently the Criminal Code of Canada does not consider a fetus to be a human being as defined by the code. This proposal would seek to extend certain legal protections to the fetus in instances when the mother was being victimized in a criminal manner. This would have no impact on other debates involving fetal rights, or the greater issue of abortion in general. It would simply seek to add certain protection to women who might fall victim to violent criminal activities.

Again, while generally speaking I support a pro-life stance on the issue, in this instance I support freedom of choice, that is to say, the freedom to choose to conceive and deliver a child without threat of violence being perpetrated against prospective mothers.

I would also like to take a moment to address this notion of Bill C-291's constitutionality. I happen to believe that the committee is mistaken with respect to the state of the court's notions on the subject. Again while I do not believe that Bill C-291 is unconstitutional and I do not outright accept that it is about abortion, for the purpose of responding to claims to the contrary, I would offer the following.

First, the Supreme Court has consistently ruled that it is incumbent upon Parliament to establish parameters under which an abortion could be permitted. For example, in The Queen v. Morgentaler, Smoling and Scott in 1988, when the Supreme Court struck down the abortion law, it was done for procedural and administrative reasons only. The court clearly did not find a charter right to abortion, but rather articulated that it was up to Parliament to determine what level of protection to afford the unborn child. It said it had to be done in such a way as to balance the rights of the woman with the rights of the fetus. In that instance Chief Justice Dickson said:

I agree that protection of foetal interests by Parliament Is also a valid governmental objective. It follows that balancing these interests, with the lives and health of women a major factor, is clearly an important governmental objective.

Justice Beetz said:

I am of the view that the protection of the foetus is and, as the Court of Appeal observed, always has been, a valid objective in Canadian criminal law...I think s. 1 of the Charter authorizes reasonable limits to be put on a woman's right having regard to the state interest in the protection of the foetus.

These sentiments were echoed again in 1989 by the court in Jean-Guy Tremblay v. Chantale Daigle when the court stated:

The Court is not required to enter the philosophical and theological debates about whether or not a foetus is a person, but, rather, to answer the legal question of whether the Quebec legislature has accorded the foetus personhood....Decisions based upon broad social, political, moral and economic choices are more appropriately left to the legislature.

This was restated in 1997 in Winnipeg Child and Family Services v. G. (D.F.) In this case involving a glue-sniffing pregnant woman, the issue at hand was whether child protective services could force a pregnant woman into custody in order to protect the unborn child. As in the previous case cited, the Supreme Court said that according to the existing law, the unborn child had no rights and therefore the woman could not be forced into custody. The court stated:

The law of Canada does not recognize the unborn child as a legal person possessing rights.

The court went on to ask at what stage would a fetus acquire rights. The court said that such thorny moral and social issues were better dealt with by elected legislators than the courts.

What I am trying to say is that the Supreme Court has consistently called upon Parliament to step up to the plate and to provide the courts with guidelines with respect to fetal rights. I respectfully submit that Bill C-291 was a genuine attempt at just that.

In closing, I would unreservedly underscore my support for Bill C-291 and renew my objection to the logic that has deemed the legislation to be unvotable. I firmly believe that the process was politicized in a manner that ignored legal precedent and continuing requests from the Supreme Court on the subject. I would like to compliment the member for Vegreville—Wainwright for putting this legislation forward in the House.

Hopefully this debate will bring this matter to light in the future so that we can actually deal with the complexities of the issue rather than hide behind the politics of it.

Criminal CodePrivate Members' Business

5:55 p.m.


Réal Ménard Bloc Hochelaga, QC

Mr. Speaker, I would also like to add to the debate by saying that all parliamentarians must keep in mind that our colleague's bill is unconstitutional. Regardless of whether one is for or against abortion, at the moment, that is the state of the law. The Supreme Court has handed down decisions and it is not possible—it is not within a parliamentarian's prerogative—to change that through a private member's bill. Of course, our colleague has the right to a debate on his bill, but we must nevertheless keep in mind that this bill is unconstitutional.

Why is it unconstitutional? Because the state of the law indicates that the first rule in right-to-life issues is that a fetus is not a human being until it is out of the womb, has drawn its first breath, and is deemed living and viable. That is the legal situation; that is what the Supreme Court has said. And what the Court has said is in line with the definition in section 223 of the Criminal Code.

Naturally, we can review the history, recall the battles fought. Nevertheless—and I invite all parliamentarians to be seized of this reality—section 223 of the Criminal Code states and declares as follows:

223. (1) A child becomes a human being within the meaning of this Act when it has completely proceeded, in a living state, from the body of its mother,

As an aside, in jurisprudence “proceeded in a living state” means that the first breath has been drawn.

—whether or not (b)it has an independent circulation;

whether or not (c) the navel string is severed.

That is the position of the law. It is not possible for a member of parliament, no matter what his or her beliefs, to table a bill that is not compatible with the provisions of the Criminal Code, which are based on a ruling made after the Canadian Charter of Rights and Freedoms was proclaimed.

Let us look at the history of abortion in Canada. In 1969, the provisions of the Criminal Code were slightly different in their approach. The 1969 provisions criminalized abortion, except in cases where approved by a therapeutic committee comprised of three doctors. There have been provisions dealing with abortion since 1777, even before the Criminal Code came into being. Since the 18th century, we have followed the practices of Great Britain and those found in common law. Since 1777, provisions have protected what we would call today the sacred nature of life.

In 1969, a legislative decision has continued to prohibit abortion, which is punishable—

Criminal CodePrivate Members' Business

5:55 p.m.


Leon Benoit Conservative Vegreville—Wainwright, AB

Mr. Speaker, I rise on a point of order. I hesitate to interrupt the gentleman from the Bloc, but he is talking about abortion. My private member's bill has nothing to do with abortion. Relevance is an issue here.

Criminal CodePrivate Members' Business

5:55 p.m.


The Acting Speaker Conservative Andrew Scheer

It does seem to be a matter for debate and not a point of order about procedure. The hon. member for Hochelaga will continue on debate.

Criminal CodePrivate Members' Business

5:55 p.m.


Réal Ménard Bloc Hochelaga, QC

Mr. Speaker, that was not a point of order, and I hope my colleague will show the courtesy of letting me finish my speech. First of all, his bill is unconstitutional. He should at the very least have the decency to listen to his fellow parliamentarians.

Yes, there are similarities between the infraction he is proposing, which relates to killing an unborn child, and abortion. All the same, I think it is my prerogative in this House to express the point of view I wish to air on behalf of my party.

In the current state of the law, the fetus has no rights while in its mother's womb. That decision was handed down by the Supreme Court of Canada, is reflected in the Criminal Code, and is the state of the law. That means that a parliamentarian cannot question that definition through a private member's bill. I think it would have been interesting if our colleague had provided us with a legal opinion submitted by the Minister of Justice, who acknowledges that the bill is unconstitutional. It is worth noting that the minister has the same background as the member who introduced the bill.

That said, I do not wish to deny our colleague's right to draw the attention of this House to such a question. He is entitled to his point of view, and all of the members of this House have heard it. This is how things should be done in a Parliament like ours.

On the topic of rewriting history on the question of when life begins, with respect to the rights of the unborn and abortion rights, I was saying that, since 1777, there have been provisions that did not appear in the Criminal Code—since the Criminal Code did not exist until the end of the 19th century—but that protected the sanctity of human life. Later, certain changes were made. The most important change was made in 1969. At that time, we maintained criminal sanctions against abortion, except if a therapeutic committee, made up of three doctors, authorized an abortion for health reasons, linked to the mother's health.

As several members have said so far, there were a number of court challenges.

Therefore, in 1969, Parliament made several important amendments to the Criminal Code, at the time referring to section 273, which specified the time when an abortion could legally be performed. Then it could be performed with the recommendation of a therapeutic committee made up of three doctors.

The section set out criminal sanctions for doctors who did not respect the strict rules that I outlined. These rules required authorization from a therapeutic abortion committee at an accredited or approved hospital and that the abortion had to be performed at an accredited or approved hospital.

The therapeutic abortion committees had to consist of at least three doctors, none of whom could be performing abortions. That very year, in 1969, Dr. Henry Morgentaler opened his first clinic in Montreal where he performed abortions without approval from a therapeutic abortion committee. As we all know, this resulted in a legal drama—probably the most famous controversy ever.

Then 1982 saw the advent of the Canadian Charter of Rights and Freedoms, which included an article on the right to physical integrity, the right to life, liberty and, of course, security of the person. This is from article 7 of the charter, which talks about life, liberty and security of the person. This would be the legal recourse by which it would be decided, in a legal manner, that women must have control over their own bodies, and that it is not in keeping with the values in the charter to restrict the right to abortion, as the provisions in 1969 did.

That is why decisions have been handed down, which prompted the lawmaker to define what life is, when a fetus becomes a fetus, and at what point a fetus must be recognized as having rights.

I will remind the hon. members that neither the Quebec civil code nor the major existing statutes respecting women's health recognize that, as long as it is in the mother's womb, the fetus is not considered a human being. Whether we agree or not, the fact remains that such is the current state of the law.

Our colleague's bill was deemed unconstitutional because clause 2, as amended, states, “It is not a defence” to a person charged with an offence set out in the Criminal Code, namely causing the death or injuring the unborn child of a pregnant woman, “ that (a) the child is not a human being; (b) the accused did not know that the person was pregnant”.

Can hon. members see how profoundly incompatible this bill is with the Criminal Code and the courts of law—

Criminal CodePrivate Members' Business

6:05 p.m.


The Acting Speaker Conservative Andrew Scheer

Resuming debate, the hon. member for London--Fanshawe.

Criminal CodePrivate Members' Business

6:05 p.m.


Irene Mathyssen NDP London—Fanshawe, ON

Mr. Speaker, after all this time, and all the debates about a woman's right to choose, and the securing of those rights under the law, here we are again talking about this issue.

Bill C-291 proposes changes to the Criminal Code that are unnecessary and will potentially jeopardize a woman's right to choose. The proposed amendment would have two charges laid against a person who kills a pregnant woman. This would, in effect, give legal rights to a fetus and change the definition of when a fetus becomes a person under the law. Currently, a fetus is not considered a person or a human being until actual live birth.

While I will not argue that harming or murdering a pregnant woman is a particularly abhorrent crime, this bill will in the end do more harm than good for women's rights in Canada.

Some may contend that this bill has nothing to do with abortion and is just about ensuring that someone who murders a pregnant woman will pay doubly for his or her crime. However, this bill is the thin edge of the wedge, as it will change the definition of when a fetus becomes a person. This change will have an effect on the legal status of abortions in Canada.

This is not something that needs to be opened up for debate once again. Canadian women fought long and hard for the right to safe, legal abortions in Canada. Women have been forced to put their private lives under scrutiny in the courts in the fight for the right to choose.

If we take away that right, women in desperate situations will have to take desperate measures, such as a young woman in 1989. While the federal government debated making non-emergency abortions illegal, this young woman bled to death after attempting to perform an abortion on herself.

This bill is nothing but a thinly veiled attempt to make abortions illegal in Canada. I am extremely disappointed that the Conservative government would use the tragic murders of young women to push its abortion agenda.

This bill calls into question a judge's ability to take mitigating circumstances into account. Courts already take aggravating circumstances into account when deciding on sentences for crimes and would most likely consider injury to or death of an unborn child to be a serious aggravating circumstance.

Furthermore, two separate offences would not necessarily equal more jail time. In Canada, unlike the United States, multiple sentences are often served concurrently.

I bring up our neighbour to the south for a reason. As many of my colleagues well know, this type of bill has been passed in several states. This type of bill does have some impact there, as jail sentences are often served consecutively, increasing the time served.

I would also like to note that the United States is the same country where there is an active attempt to ban access to abortion for American women at both the state and the federal level. The supporters of this type of bill are the very same people actively working to ban abortions.

The evidence is clear. To date, the courts across Canada have blocked provincial attempts to substantially regulate the issue of abortion, finding that the pith and substance of such attempts is actually an attempt to recriminalize abortion through the back door.

And recriminalizing through the back door appears to be the intention of this bill. Bill C-291 puts the legal status of an unborn child into question. First, Bill C-291 does not refer to an unborn child in the same manner as other sections of the Criminal Code. Section 223 states that a child becomes a human being when it is born alive, and section 238 refers to “a child that has not become a human being”.

By contrast, Bill C-291 refers to “a child before or during its birth”. Not only is this terminology generally inconsistent with the approach taken to the fetus in the Criminal Code as a whole, but it is also inconsistent with terminology used in section 238 itself, the provision it is amending.

Bill C-291 essentially represents an indirect recognition of an unborn child as a human being. Such an initiative could have significant ramifications in a number of different areas of law.

Recognition of an unborn child as a human being indirectly leads to its recognition as a person with legal status. If an unborn child becomes defined as a person with rights, it opens a Pandora's box in the abortion debate.

Recognition of an unborn child as a person would also have a significant impact on tort law and other areas of the common law. Numerous cases have been commenced in the past on behalf of unborn children. They have not been successful because the law does not recognize the fetus as a person with legal status. Any change to this status in the criminal law could potentially have wide ranging implications in common law.

The proposed amendment will also have a significant impact on the mens rea or the intent of the accused. Mens rea includes issues such as the accused's perception of the risk or legal consequence of his or her actions.

The amendment states that it is not a defence that the unborn child is not a human being, that the accused did not know that the mother was pregnant, or that the accused did not mean to injure or cause the death of the unborn child.

Bill C-291 essentially eliminates the intention requirement, and the lack of intention defence appears contrary to the fundamental elements of criminal law.

There is a “thin skull rule” in criminal law which already states that a person who inflicts more than trivial bodily harm must take the victim as he or she found the victim; for example, with a medical condition that leads to more serious consequences to that bodily harm. In other words, judges already have the ability to consider a pregnancy.

Bill C-291 goes beyond this to create an entirely separate offence that eliminates the lack of intention defence inherent to all criminal law. While it may be argued that intent to injure the mother fulfills the mens rea requirement for this separate offence, this is a potentially tenuous link that would likely be challenged in the courts.

It is obvious why this bill was ruled non-votable. Not only is it a veiled attempted to make abortions illegal in Canada, but it would make a significant change to our legal system that is neither necessary nor welcome.

The Conservative Party continues to repeat that it is keeping its election promises, yet its members are bringing bills to the House that directly contradict that platform. I would like to quote directly from what the government has said:

A Conservative government will not initiate or support any legislation to regulate abortion.

This bill does exactly that. It initiates legislation that will essentially regulate abortion in Canada by changing the definition of the legal status of a fetus. It opens the door to making abortion illegal in Canada.

A woman's right to choose was hard fought, and it would be detrimental to Canadian women and an international embarrassment to remove that right. The Conservatives are not standing up for Canadian women by tabling bills that will impact on a woman's right to choose.

Taking away a woman's right to choose will not reduce violence and will not make this a better world. It will only remove her freedom. That simply is unacceptable.

Criminal CodePrivate Members' Business

6:10 p.m.

Fundy Royal New Brunswick


Rob Moore ConservativeParliamentary Secretary to the Minister of Justice and Attorney General of Canada

Mr. Speaker, I rise today to speak to Bill C-291, a bill that proposes to amend the Criminal Code to create a new offence of injuring or killing a child before or during its birth while committing an offence against the pregnant mother.

I believe, at its core, the bill is about ensuring that our criminal law strongly condemns and holds fully accountable those who commit violent acts against others, particularly against persons who are more vulnerable to violence. The evidence is clear that pregnant women are more likely to be victims of assault by their partners than other similarly situated women. These objectives are strongly supported by Canadians and, indeed, are reflected in the government's priority of getting tough on crime.

At the outset, I understand and support the message that Bill C-291 seeks to send to would-be offenders. If we are to achieve this important objective, we must seek to do so in a way that is consistent with fundamental principles of criminal law and that conforms with our constitutional law. If we do anything less, if we support legislative reform that does not follow the contours of our Constitution and its conventions, then we in fact fail to provide Canadians with the very protection against violence we seek to provide.

That is why the government cannot support Bill C-291. Although it appreciates the its intent, we believe its proposed reforms are in fact unconstitutional and, as a result, cannot do what it purports to do. It cannot succeed in providing the additional protection against personal violence, which we all agree Canadians want and deserve.

Bill C-291 proposes to create a new criminal offence. Under the bill, a person who injures or kills a child before or during its birth, while committing or attempting to commit an offence against the mother who is pregnant with that child, could be charged with the same offence against the child. Under Bill C-291, an accused could be charged with such an offence without knowledge that the mother was pregnant and without the accused intending to injure or kill the child. Therein lies the problem.

Bill C-291 proposes to create a new offence that would apply even though an accused did not intend to commit a crime. One of the fundamental principles of criminal law is that persons are not punished simply because harm was done, but rather because they are morally culpable for causing that harm. Therefore, a criminal offence may only be committed where there is both a guilty act and a guilty mind. There must be an intention to commit the act, as well as the commission of the act itself.

An offence that does not require a guilty mind and that requires only a guilty act is called an “absolute liability offence”. The Supreme Court of Canada has repeatedly found criminal offences of such a nature to be unconstitutional. The effect of the proposed offence in Bill C-291 is also to clearly prevent an accused from invoking available legal defences. This too raises additional charter concerns under sections 7 and 11(d), namely, the right to a full answer and defence.

Again, the Supreme Court of Canada has consistently held that such grounds of unconstitutionality cannot be saved under the charter. In other words, punishing people who cause harm but who are not morally culpable cannot be said to be “demonstrably justified in a free and democratic society”.

As I said at the outset, while I understand and appreciate the objective of Bill C-291, I believe the bill's proposed reforms are unconstitutional. As a result, the bill cannot achieve its objective of safeguarding Canadians against violence. This does not mean that Canadians are not protected by existing criminal law.

Section 238 of the Criminal Code makes it an indictable offence, with a maximum penalty of life imprisonment, to cause the death of a child while it is being born. As well, section 223 provides that where a person causes injury to a child before or during its birth, as a result of which the child dies after its birth, that person commits the offence of homicide.

Moreover, where an accused kills another person, whether the victim is pregnant or not, the accused may be charged with first degree murder or second degree murder, both of which carry a mandatory penalty of life imprisonment.

The criminal law ensures that the impact of violence perpetrated on victims is reflected by the sentence or penalty imposed in each case. In all cases, a sentencing court must consider aggravating as well as mitigating circumstances.

The specific situation of the victim is always considered. For example, was the victim a victim of spousal abuse? If so, section 718.2 of the Criminal Code requires the sentencing court to consider this as an aggravating circumstance for sentencing purposes. Whether the victim was pregnant or the mother of one or more children will also be considered as an aggravating circumstance. Indeed, under section 722 of the Criminal Code, a sentencing court must consider a victim impact statement that has been prepared in a case that describes the harm done to, or the loss suffered by, the victim arising from the commission of the offence.

The government's commitment to Canadians does not end with merely supporting the existing criminal law. The Speech from the Throne underscores the government's commitment to get tough on crime, to tackle offenders, to bring in tougher sentences for violent and repeat offenders, particularly those involved in weapon-related crimes.

This commitment is directly relevant to Bill C-291, as I understand the bill was motivated by a case that is currently before the courts and which involved the use of a firearm. The government has already delivered on our Speech from the Throne commitment. On May 4, the Minister of Justice tabled Bill C-10, an act to amend the Criminal Code, minimum penalties for offences involving firearms, and to make a consequential amendment to another act. The reforms in Bill C-10 seek to ensure that the use of a firearm in the commission of a serious offence will be subject to a significant sentence.

Further, as the House knows, we brought in Bill C-9, which addresses the serious issue of conditional sentencing. The government is serious about getting tough on crime, about protecting victims and about ensuring that we have a criminal justice system that Canadians can have faith in.

Bill C-291 speaks to the importance of protecting Canadians against violence. It speaks to the need to ensure that our criminal law adequately reflects the serious impact of violence on all of its victims. I believe all members of the House can support these objectives. That said, our duty as parliamentarians is to ensure that we enact legislation that respects fundamental principles of Canadian law.

The government is committed to protecting Canadians and we have already taken strong measures to do so.