Debates of Sept. 21st, 2012

Increasing Offenders' Accountability for Victims Act

[Lysane Blanchette-Lamothe, NDP, Pierrefonds—Dollard, QC]

Mr. Speaker, the hon. member has been raising the same issue since the beginning of this debate and I get the impression that we simply do not have the same idea of the work that must be done in committee. It is possible that we do not agree in this regard and I respect that.

However, if the hon. member truly believes that the NDP is against allowing judges to use their discretion, I would like him to give me a good example of a bill that the NDP voted in favour of and that, in its final stages, destroyed the discretionary power of judges. I cannot remember any such bills that were supported by the NDP in their final stages. What the NDP is saying right now is that this bill should be examined because the Federal Ombudsman for Victims of Crime said that there is something worthwhile about it and that it should be given some attention.

The NDP does not just do at it pleases. It works with its partners and with experts, and that is why it remains open to dialogue. However, I have many examples to show that the Liberals have undermined the discretionary power of judges on a number of occasions, and I would be happy to speak to the hon. member about them at another time.

[Claude Gravelle, NDP, Nickel Belt, ON]

Mr. Speaker, I would like to congratulate my colleague on her wonderful speech.

I have a short question to ask her. We know that the Conservatives are not used to co-operating with the other parties, but all we have heard this morning from the Liberal Party is that it has given up on the majority of the Conservatives and that it has adopted an underdog attitude.

I would like my colleague to comment on the Liberal's attitude compared to ours given that we want to work in committee to improve this bill.

[Lysane Blanchette-Lamothe, NDP, Pierrefonds—Dollard, QC]

Mr. Speaker, in my opinion not every bill should be passed at second reading in order to be studied in committee. I believe that we agree on that. However—and here we may not all agree—the purpose of this bill is to provide additional assistance for victims. Exactly how we are going to do that requires serious debate, and it is worth listening to what the experts have to say in that regard.

The NDP is not going to stand on ideology with this issue. We believe we will continue to have discussions and do the work to the end. If this bill is not amended and improved, the NDP will not support it, especially if it undermines judicial discretion. That much is clear. In spite of everything, we will continue to do our job in Parliament.

[Élaine Michaud, NDP, Portneuf—Jacques-Cartier, QC]

Mr. Speaker, I am pleased to rise in this House for the first time since Parliament resumed, and I am also happy to see all my colleagues again after a very busy summer in my beautiful constituency of Portneuf—Jacques-Cartier.

Mr. Speaker, I would like to take a few moments to congratulate you on your appointment to this new position, something I have not yet had the opportunity to do. I see that you already seem at ease in the chair and I feel that you are going to fulfill your mandate with serene professionalism. Good luck throughout your tenure.

This afternoon, I would like to talk about Bill C-37, which seeks to amend the provisions of the Criminal Code dealing with victim surcharges. A victim surcharge is an additional sanction imposed by a judge when an accused is found guilty of a criminal act.

These surcharges are collected and kept by the provincial and territorial governments in order to fund programs and services provided to victims in the province or territory in which the offence was committed. Among other things, the bill proposes to double the amount that offenders have to pay when they are sentenced and to make the surcharge mandatory for all offenders without exception.

Bill C-37 is presently at second reading, as the hon. member for Pierrefonds—Dollard and other hon. members before her rightly pointed out. If it is passed at this stage, it will be referred to the Standing Committee on Justice and Human Rights for an in-depth study of each of its clauses. In a word, we are a long way from the final passage and implementation of the bill, which could be passed as is.

Today, I would like to state my position in favour of Bill C-37 at this stage of the legislative process, because I believe that the bill deserves serious and detailed study before it obtains royal assent and becomes part of the overall justice system.

A good number of hon. members before me have expressed the same desire to study the bill in depth in committee, because we are concerned about the lot of victims of crime across the country.

The NDP supports crime victims and their families and is in favour of better funding for programs and services that help those who have become victims of crime.

The Federal Ombudsman for Victims of Crime and a number of victims' organizations have already clearly stated that there is a huge need for more funding for victims' assistance programs. That is one of the reasons why the NDP is not prepared to dismiss this bill without even taking a look at it. We want to work with the other parties. If the Liberals decide to work with us, all the better. Otherwise, we are still opening the door to the Conservatives to develop a bill that will be able to satisfy the most people and address the specific needs of crime victims.

We want to ensure that everyone who works with crime victims has all the resources they need to provide the necessary services to victims. Although I support the spirit of Bill C-37, I still have a number of concerns. The Standing Committee on Justice and Human Rights must examine this bill carefully and answer our questions before members of Parliament give their approval.

As I mentioned earlier, this bill proposes to double the amount of the surcharges imposed on offenders. The surcharge would be raised to 30% of the amount of the fine determined by the judge during sentencing—up from 15%. If no fine is imposed on the offender, the amount would be $100 in the case of an offence punishable by summary conviction and $200 in the case of an offence punishable by indictment.

Although this is an interesting proposal, we must consider that this provision in Bill C-37, which would double the amount of the surcharge, could quickly become a problem for low-income offenders. I am not saying that these individuals should not pay their debt to society. On the contrary, I completely agree with the principle of holding offenders accountable and making them contribute to compensation for victims.

However, I think that one of the primary goals of our prison system is to rehabilitate prisoners who will eventually be released into society so that they no longer represent a threat to public safety. We cannot simply lock people up and make them pay some money to try to make them accountable for their crimes.

This is not what is going to help rehabilitate criminals. They need to be given favourable conditions to do so. That inmates can accumulate a debt of up to several thousands of dollars before even getting out of prison is perhaps not the best way to facilitate their rehabilitation.

As for offenders who would not be able to pay the surcharge, Bill C-37 still provides the possibility of taking part in a provincial or territorial fine option program in the provinces and territories where this type of program exists. The fine option program lets offenders pay their debt by earning credits for work done in the province or territory where the offence was committed.

The problem here is that this type of program does not exist in all provinces and territories. So not all offenders would have the opportunity to participate in a fine option program and take care of their debt through some form of work. What happens in that case? What solution would enable these individuals to take care of their debt? This question needs an adequate answer before we can even think about making Bill C-37 a proper bill that applies across Canada.

We also need to ensure that the money for victims of crime is put to good use in all provinces and territories where there is no fine option program. The victims who live in those areas of the country also deserve to receive services, and this government has a responsibility to ensure that they get their fair share.

Another aspect of Bill C-37 that deserves to be studied in depth by the committee is the substantial loss of judges' discretion to determine whether paying the victim surcharge would cause undue hardship for the offender. At the moment, judges are not required to automatically impose this type of surcharge on all offenders if the offenders are able to demonstrate that paying the fine would cause undue hardship to them or to their dependants, be they spouses or children.

If Bill C-37 is passed in its present form, courts will no longer be able to waive the victim surcharge in specific cases. However, judges will still retain the discretionary power to impose a higher victim surcharge if circumstances warrant and if the offender has the means to pay it.

I heard a number of Liberal members, and one in particular, suggesting that the NDP is in favour of restricting the autonomy of judges to impose a victim surcharge on offenders at the time of sentencing, as currently proposed under Bill C-37. Let me just say that it is simply not true. The NDP believes that restricting the autonomy of judges poses a problem and should be reconsidered. We have to have confidence in our judiciary, not tie the hands of our judges the way the Conservative government has done by imposing minimum sentences for certain crimes. The NDP firmly believes that the autonomy of judges is essential to the proper functioning of our justice system and that it should be maintained. We have to let courts do their job.

There are and always will be specific cases and judges must be free to treat each case in its own right. They need to have the freedom to impose the appropriate sentence based on the individual circumstances of each offender. I hope that I have been clear enough so that I will not have to answer the typical question from the hon. member for Winnipeg North as to where the NDP stands on restricting the power of judges.

As members can see from what I have said, Bill C-37 to change the Criminal Code provisions on victim surcharges does have some problems, and warrants further debate and consideration. The NDP supports the recommendations of the Federal Ombudsman for Victims of Crime and believes that more funding is needed to provide adequate services to victims of crime. There are a few problems with Bill C-37 and a thorough examination at the Standing Committee on Justice and Human Rights is needed in order to come up with real solutions to those problems.

I believe that all members of all political stripes work in good faith. They come to the House with the best interests of Canadians at heart, and they work accordingly. This is the kind of attitude that will allow us to create a bill that is more equitable for everyone, that meets the needs of victims, that provides them with the programs and services they need, and that will make offenders more accountable.

It is for that reason, and that reason alone, that I will support Bill C-37 at second reading and vote to send it to committee. If it is not suitable after that, we can always change our minds.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, I am starting to get it. The NDP members are saying that they believe they can change the principle of this legislation once it goes to committee, therefore it is okay if we pass the bill on to committee, and that is the reason they will vote for it going to committee.

I do not know how that would have worked for back-to-work legislation, the killing of the Canadian Wheat Board or many of the other pieces of legislation, such as the gun registry and so forth.

Having said that, if that principle does not change, based on what the previous speaker said, then I take it that the NDP will be joining the Liberals and voting against it at third reading.

Is that a fair assessment, that if the member cannot get the government to change that principle that you will in fact oppose it at third reading?

[The Deputy Speaker, NDP, Joe Comartin]

I would remind the member for Winnipeg North to address his comments to the Chair.

The hon. member for Portneuf—Jacques-Cartier

[Élaine Michaud, NDP, Portneuf—Jacques-Cartier, QC]

Mr. Speaker, I am pleased to hear the question put a little differently. Finally a breath of fresh air in this House. I said that we are prepared to consider continuing to support this bill if we get what we need. We are here to work with others.

I cannot predict what will result from the committee's work. Consequently, it is very ill-advised to reply at this time and to say what our exact position will be. However, we will be there and we are open to working with others. Perhaps it is this defeatist attitude tinged with cynicism that led voters to relegate the Liberals to the rank of third party. They saw that the Liberal Party was not prepared to work with others, to find new solutions and to change things.

[Françoise Boivin, NDP, Gatineau, QC]

Mr. Speaker, I thank my colleague from Portneuf—Jacques-Cartier who gave an excellent speech on the issue and also gave a good answer to my colleague from Winnipeg North, who truly surprised me. I may perhaps ask my colleague for further clarification.

I have had many discussions with our colleague from Westmount—Ville-Marie at the Standing Committee on Justice and Human Rights. We tried, always in good faith to consider the government's objective from the government's viewpoint. And that has always been the approach of my colleague from Westmount—Ville-Marie and of the NDP. We try to be better informed after listening to the experts. It is the government that introduces these bills. We spend our time chastising the government for not listening to the experts. We will have an opportunity to do so.

The Federal Ombudsman for Victims of Crime has told us that we need to do something for the victims, and we would just simply close the door, as the member for Winnipeg North is implying? I must say, perhaps because I was not present during the debates at the beginning of the week, that it seems to me that the Liberal tone has changed. The Liberals' approach was slightly more pro victim at the beginning of the week. I do not know why they have hardened their stance.

[Élaine Michaud, NDP, Portneuf—Jacques-Cartier, QC]

Mr. Speaker, I would like to thank the hon. member for Gatineau for her question and for all the work she does in the area of justice. I think that she represents us and the NDP's positions on various files, including this one, very well. I hope that we will have the chance to hear more from the hon. member for Winnipeg North about this closed-minded attitude and about not wanting to help victims.

We are prepared to set aside certain ideological differences to work with the Conservatives and come up with a bill that will really satisfy everyone and meet the needs that have been clearly expressed by victims of crime, the Federal Ombudsman for Victims of Crime, and victims organizations.

It is completely illogical and even ridiculous to me to simply close the door on any opportunity to change things here. I believe that this is why Canadians across the country chose members of the NDP to represent them. They know that we are open-minded and that we want to make changes.

[Claude Gravelle, NDP, Nickel Belt, ON]

Mr. Speaker, I know that my colleague said in her speech that she had some concerns about this bill, which will be sent to committee. I would like her to explain what those concerns are and what will be done differently in committee.

[Élaine Michaud, NDP, Portneuf—Jacques-Cartier, QC]

Mr. Speaker, I know that I do not have a lot of time, but I want to quickly reiterate two key things.

First, there is the fact that the victim surcharge will be doubled for all offenders without exception. Sometimes, certain specific cases need to be considered separately. Second—and I think that this bears repeating for some of the members of the House—the NDP is opposed to restricting the autonomy and freedom of judges to determine whether a surcharge is necessary on a case by case basis.

[Sadia Groguhé, NDP, Saint-Lambert, QC]

Mr. Speaker, under section 737 of the Criminal Code, a judge may impose a victim surcharge on a person found guilty of a criminal offence. Specifically, this is an amount of money that accompanies any other punishment and is determined by the lower of the following amounts: 15% of any fine imposed, or, if no fine is imposed, $50 in the case of an offence punishable by summary conviction and $100 in the case of an offence punishable by indictment. Furthermore, the Criminal Code allows the judge the discretionary power not only to order an offender to pay an amount exceeding that amount “if the court...is satisfied that the offender is able to pay“, but also to make sure that the offender is able to pay the surcharge.

Our criminal legislation goes further in allowing the offender the opportunity to establish that the additional payment of the victim surcharge would cause undue hardship. The judge can then exempt the offender from the victim surcharge.

The victim surcharge is imposed in addition to any other punishment for an offender convicted or discharged of a Criminal Code offence or an offence under the Controlled Drugs and Substances Act. It is a sanction that is principally directed at the offender's assets. The money is paid to the provinces and territories so that they can fund assistance to victims of crime.

Given that the victim surcharge is a penalty, it must be effective and it must reflect the traditional objectives expected of penalties: to dissuade, to deter, to provide redress and reparation, and to rehabilitate. In other words, Canadian legislation has, in a way, assigned three classic functions to the penalties provided for in the Criminal Code: those functions are prevention, reparation and redress.

The NDP supports Bill C-37, the intent of which is to amend the provisions of the Criminal Code dealing with victim surcharges in order to double the amount that offenders will be required to pay when they are sentenced, and to make the surcharge mandatory for all offenders.

More specifically, under Bill C-37, the surcharge would increase to 30% of any fine imposed, or, if no fine is imposed, it would go from $50 to $100 for a summary conviction offence. It would also go from $100 to $200 in the case of an offence punishable by indictment.

Bill C-37 makes other amendments to the Criminal Code by repealing the provision that gives the court the flexibility to waive the victim surcharge if offenders establish that paying it would cause them or their dependents undue and unreasonable hardship.

The bill preserves the discretionary power that judges have under the current legislation to increase the amount of the victim surcharge if they believe that the circumstances warrant it and the offender has the ability to pay.

Bill C-37 takes into account the fact that some members of the community may not be able to pay the surcharge because of difficult social conditions, so it gives them an alternative: participating in a provincial fine option program, where such programs exist.

Fine option programs allow the offender to pay a fine by earning credits for work done in the province or territory where the crime was committed.

The purpose of the proposed increase set out in Bill C-37 is to have a more meaningful impact on the personal wealth of potential criminals by connecting their actions to the costs incurred by the government in helping victims cope with the consequences of the terrible acts they commit.

The NDP supported several of the recommendations made by the Federal Ombudsman for Victims of Crime, including this one, and is also in favour of enhanced funding for programs for victims of crime.

Indirectly, this bill will satisfy a number of the recommendations made by the Federal Ombudsman for Victims of Crime, who for years has been arguing in favour of an automatic surcharge and better funding for programs for victims of crime.

Crime puts a major strain on government resources. It also puts a strain on the limited resources of Canadian taxpayers.

In 2003, crime cost about $70 billion. Victims of crime bore $47 billion or 70% of that total cost.

In 2004, studies estimated the compensation paid to victims for pain and suffering at $36 billion. That amount does not include the compensation that a significant number of eligible victims do not claim because they are not familiar with the legislation.

On a number of occasions, the Elizabeth Fry Society has also expressed its deep concerns about the bill and about the impact of additional fines on disadvantaged people who cannot afford to pay.

The John Howard Society said that it does not necessarily have a problem with the fines, but that it is afraid that, under this system, fines might end up being disproportionate to the crimes.

The NDP is in favour of Bill C-37 as far as the benefits mentioned earlier go. However, they have some concerns about the bill and hope that the necessary improvements will be made once it is studied in committee.

In the meantime, I would like to talk about the proposal to remove judicial discretion under Bill C-37. That is unacceptable since the discretionary power is very much part of a judge's role. Removing it from judges means undermining the independent nature of the judiciary, which allows judges to hear all sides of the story and to take a stand based on what they know and according to their conscience.

Judges have sovereignty to weigh the facts before them and to make a ruling one way or another. We have a problem with removing judicial discretion when it comes to the surcharge.

The NDP recognizes the paramount importance of the autonomy of judges and will not be able to support the amendment that proposes to restrict judicial discretion. Judges must have that power to be able to perform their duties free from pressures of any kind.

We in the NDP also have some reservations about the proposal to remove the undue hardship clause, considering the negative impact this could have on low-income people. The same is true for the proposal to double the amount. For people who have low incomes, the bill should include a provision to allow judges to waive the surcharge. The law cannot blindly punish people. It must take into account the particular circumstances of the victim, otherwise it would be unfair.

The Conservatives and the NDP have different views of justice. This bill is based on one of the Conservatives' campaign promises in the last election, that they would double the amount paid to victims and make the surcharge mandatory in all cases, with no exceptions, in order to make offenders more accountable to victims of crime.

The NDP, which is appealing for a justice system that is more conscious of the specific needs of young offenders and the need to rehabilitate criminals, opposes any justice reforms that appear to be motivated by a law and order ideology and that do not take into account the specific circumstances of each offender.

I cannot conclude my speech without pointing out the overlap that exists between BIll C-37 and private member's Bill C-350, which also aims to make offenders more accountable to victims. How will these two bill affect one another?

The NDP supports victims of crime and their families and respects the recommendations of the Federal Ombudsman for Victims of Crime. Although we support the principle of Bill C-37, the NDP would like it to be debated further in order to improve it overall.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, I do appreciate the fact that members of the New Democratic Party say that they support the Liberals' efforts and thoughts in regard to the importance of judicial discretion.

When I have asked why the NDP members would vote to send the bill to committee, the response has tended to be that that is where it should go. Even though Bill C-10, the Safe Streets and Communities Act, was strongly supported by provincial jurisdictions, including the NDP in Saskatchewan, the federal NDP voted against that bill going to committee. It is an issue of consistency and that is what I am looking to the member for. As the Liberals and the New Democrats voted against sending that bill to committee, it is a bit of a surprise that those members would not join us on this bill. Instead they have chosen to join the Conservatives in supporting this particular bill going to committee even though we seem to share the same concerns about judicial independence. I for one am a very strong advocate for listening to what the victims and others have to say.

If the government were to change the principle of the bill, then it would deserve the support of an opposition party. Would the member not agree?

[Sadia Groguhé, NDP, Saint-Lambert, QC]

Mr. Speaker, I thank my colleague for the question.

I would simply like to remind the member that the NDP believes in democratic debate. We think that changes can be made in committee, because dialogue and discussion take place there and because debate is possible there, which is why we intend to support this bill, so it can go to committee.

[Tyrone Benskin, NDP, Jeanne-Le Ber, QC]

Mr. Speaker, I want to preface my question with, “Really?” Bill C-10 was Bill C-10 and Bill C-37 is Bill C-37. I am not sure where my hon. colleague is drawing the link that just because we stood up against Bill C-10 from the beginning, we should do the same thing for Bill C-37. There are elements in Bill C-37 that deserve being looked at in committee. There are elements in Bill C-37 that need to be changed, in particular the point on judicial discretion.

Could my hon. colleague enlighten us a little more on the importance of taking a good look at a bill, trying to change the things that do not work and enhancing the things that do work, which is what we are trying to do with Bill C-37?

[Sadia Groguhé, NDP, Saint-Lambert, QC]

Mr. Speaker, I thank my colleague for the question.

Obviously, ensuring that democratic debate can continue in committee is very important to parliamentarians. We have opportunities to go back to certain things and propose amendments. These discussions are vital because they make it possible to influence in some way the changes made to legislation.

I believe that we must insist on the fact that democratic debate does not exclusive to the House. It occurs in our committees, and these meetings are needed in order to influence and propose amendments to proposed legislation.

[Françoise Boivin, NDP, Gatineau, QC]

Mr. Speaker, I very much appreciated my colleague's last comments, and her entire speech for that matter.

These bills make it possible to meet with groups who want to be heard by parliamentarians. In that context, would voting against the bill prevent a number of groups that represent victims from having a say on such an important matter?

[Sadia Groguhé, NDP, Saint-Lambert, QC]

Mr. Speaker, I thank my college for his excellent question.

Obviously, hearing from witnesses is crucial and vital to a healthy democracy. It is important and necessary for committees to hear from as many groups as possible, or even from individuals, people who present their viewpoints and suggestions for improvements, which we, as parliamentarians, must consider. That is very important.

[Dennis Bevington, NDP, Western Arctic, NT]

Mr. Speaker, I would like to take the opportunity to express my congratulations to you on your recent elevation to the Speaker's chair in the Deputy Speaker role. Your acknowledged expertise in Parliament, with winning the Maclean's/Dominion Institute Awards as Canada's “Most Knowledgeable” Parliamentarian three times in a row, puts you in a position of considerable support from the entire House for the work that you will do. I hope it all goes very successfully for you. I am sure you will work very well with our Speaker and the Acting Speakers to make the House more reasonable and acceptable to Canadians. I think that is the goal of all of us here. It is a wonderful goal and something for which we should be pushing very hard.

On Bill C-37, first, I would like to deal with the issue of why the NDP would support a bill that would ostensibly take away some discretion from judges and put it into the hands of legislation.

We have to look at the past six months in Parliament to see that many of the bills we wanted to discuss in committee were rammed through. We did not really spend much time on important legislation, legislation that will now have an impact.

Thinking back to Bill C-38, we heard from some witnesses who said that they were in favour of the provisions in the bill on the environment, but that it needed some changes. These people liked the legislation, but thought it required amendment to make the bill better. However, there were no amendments at all to that huge omnibus bill and it was rammed through Parliament. Every Canadian may feel the impact of legislation that is not properly constructed and given due attention.

In this Parliament, the ability to bring something like this forward to committee is an excellent opportunity. There are people who should be heard. Judges need to be heard.

Over previous years, judges have used their discretion quite often not to put a victim surcharge in place. We need to understand why those judges made that decision and why they judged that it was the correct thing to do. We need to understand what it was should that discretion over the victim surcharge be maintained. Upon hearing their opinion, we may get closer to what the bill can accomplish.

We talked a bit about the fine option program. That exists in the Northwest Territories, which I represent, and that program works very well. Not only does it provide low-income Canadians with an option to deal with the added financial responsibility after a criminal charge has been given to them, along with all the other problems it causes in their lives, but in the small communities I represent it really brings people back into the community. It allows them to show that they are willing to work with the community again, that they have attributes and a good side, which can be displayed with these fine option programs.

Over and over we see people under the fine options program taking care of seniors by cleaning their driveways, mowing their lawns or doing all kinds of nice work that brings them back into the community in a real fashion. There are other options that have people out on the land. There may be a variety of activities. They are not costed that well because the cost is not the important part of that program.

The important part of that program is the rehabilitation it provides. If this bill in any way encourages the other provinces and territories to take on a fine option program to match up with this, because the increased fines will be so difficult for many low income people to deal with, that may be a good outcome of the bill. It will encourage those other provinces and territories to get onside with the fine option program, something that works well.

On the other side of it, victims services in the Northwest Territories are probably in the millions of dollars a year. Yet, if we look at the total number of charges and convictions and the amount of money that is raised, we can see that this surcharge is only a small part of what society puts into victims services. It has to be.

It is really not about the money. It is about creating an atmosphere where people understand that what they have done has hurt others and they have an opportunity to remedy that through a financial contribution, which may take something off it, but there is also this fine option program where they actually have to interact with the community. The community understands they under a fine option and they understand they are working off some problem that they created. That is very useful for the justice system.

I do not want to see the provincial or territorial fine option program turn out to be something that does not deliver to the victims. Offenders could end up in the fine option program working off their time, but where is the money for the victims? Do they have to wait until the time is worked off? That might be an amendment we could look at to ensure that if victims' compensation is to be delivered that, it is done in a timely fashion to the victims who have an opportunity to get some services or support for whatever has beset them through the crime that has occurred. The victims should have some opportunity to get that as soon as possible.

There are some issues there that would require a careful look at this. The position of the judges needs to be understood more fully. Canadian judges, by and large, across the country represent a very large and significant volume of justice, understanding and experience with handling criminal cases. Canada has an enormous record of making criminals out of our citizens. The judges are there for all of that.

Bringing this bill forward and taking a look at what it actually means is the sensible thing to do right now. It is a good thing for Parliament to do as well. I do not want to go through the exercise we went through last June when the government rammed through the omnibus bill with no consideration of the finer points of any of those legislation changes. The sheer stupidity of that will play out in Canada for many years to come.

[The Deputy Speaker, NDP, Joe Comartin]

It being 1:30 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 April 26 consideration of the motion.

Special Committee on Subsection 223(1) of the Criminal Code

[Massimo Pacetti, Liberal, Saint-Léonard—Saint-Michel, QC]

Mr. Speaker, I would like to congratulate you on your appointment. This is my first opportunity to do so.

I am pleased to rise in debate on Motion No. 312. I am proud to stand with my opposition colleagues in voting against the motion. Much of the discussion in the House has turned on the issue of debate, namely the Conservative member who introduced the motion insists that it does nothing more than foster debate over the definition of personhood in the Criminal Code.

In reality, this is just a backdoor to reopen the debate over abortion in Canada, a debate that has been closed for many years. This issue has been laid to rest in the minds of so many Canadians and, frankly, I share the astonishment that we are again in the House needing to debate something for which so many women and men fought tirelessly decades ago.

The member for Kitchener Centre, who sponsored this motion, claims that all he wants to do is improve the legal definition of a human being in Canada. His motion would create a special committee directed to review subsection 223(1) of the Criminal Code. By moving a motion that uses neutral language to review the current definition of a human being, a motion that does not say whether the proposed committee should amend or maintain the existing subsection 223(1), the member can claim that his primary concern is creating better laws. But that is not the case.

The mover of this motion does not deny that he is anti-abortion, but he framed Motion M-312 as an issue of archaic legislation. Let us be honest: an old act is not necessarily a bad act. The Constitution Act of 1867 is close to 150 years old. But no parliamentarian has tried to abolish the Constitution simply because it is old. Similarly, murder has been illegal for a long time, but I do not think that this government, which says it is tough on crime, will decide to decriminalize murder simply because the laws prohibiting it have been around for a very long time.

If he really thinks that subsection 223(1) is archaic, the member for Kitchener Centre should try to amend that section, rather than place the burden of research and decision making on a special committee. Why use resources funded by taxpayers so that parliamentarians can hold a debate that the vast majority of Canadians find undesirable and even offensive? Why accept these terms of debate when the mover himself has said that he would like the legal definition of a human being to include fetuses, thereby restricting abortion?

It is clear the member has ideas as to how he wants “personhood” defined in the Criminal Code. Why does he not just propose the change? Why does he not put forward for all Canadians to see exactly what he wants to have us legislate, instead of pretending he is neutral and is doing this in the interest of making better laws?

Truly, if the government were interested in better laws, it would not have gutted the Law Commission of Canada. It would not have closed the court challenges program. It would not insist on legislation that is unconstitutional. Just this week, we saw one of its statutes overturned by the Ontario courts.

The Criminal Code is in need of reform and cleaning. Indeed on this whole topic of personhood, the Criminal Code still speaks of therapeutic abortion committees, something the Supreme Court struck down in 1988.

If he wants to make a better Criminal Code, why does he not propose to remove this relic that hearkens back to a time when women did not have a choice?

As a non-lawyer, I cannot profess to be a great legal scholar, but I do understand that extending legal personhood to fetuses, the ultimate goal of Motion No. 312 according to its sponsor, would jeopardize the status of abortion in Canada because it would grant legal protections to fetuses such as the right to personal security. The question, of course, is where would that slippery slope take us?

Would this mean outlawing abortion entirely? Would we also then limit what women can do while pregnant? Think about it. If we start down this path, we can easily see the same member coming back here in a few years to say, “Well, abortion is illegal. Now why don't we make it illegal for women to work in their last trimester?”

Where would this assault on the rights of women end?

Canadian jurisprudence on the issue of fetal personhood is clear. A fetus may not be considered a person under existing law, aside from subsection 223(1) of the Criminal Code, which clearly states that a fetus is not a person until the moment of complete birth. A number of Supreme Court decisions have also indicated that a fetus cannot be considered a person in Canadian law.

It is no surprise to anyone paying attention that the government has been attacking our courts, limiting the power of judges through mandatory minimum sentences, reducing options for sentencing alternatives.

However, the law in Canada is settled here. The only suggestion the member opposite can seem to muster up for changing it is that it is old. That simply is not good enough, especially when it comes to the rights of women.

During the 2011 election campaign, the current Prime Minister promised that his party would not change the laws on abortion, saying:

[A]s long as I am prime minister, we will not reopen the debate on abortion. We will leave the law as it stands.

The Prime Minister should hold his party and that member to his promise.

The Liberal Party does not support reopening the abortion debate, in any way.

Frankly, it is a shame that we are wasting time debating this when Canadians are out of work, budget cuts across multiple sectors are putting the health and safety of Canadians at risk, there is a lack of affordable housing and many first nation communities live in circumstances that are downright appalling for a first world nation.

The Chief Government Whip said that he did not want women to return to a bygone era when some women had to resort to illegal and dangerous abortions. That should never happen in a civilized society. However, that is what might happen if abortion is criminalized.

We should not be turning back the clock on women's rights. Instead, we should be making progress together for women, be it on pay equity, reopening the offices of Status of Women Canada that were closed by the government, ensuring that affordable housing and childcare options exist and ensuring women are represented in public life through judicial appointments and the like.

When the member for Kitchener Centre and his colleagues talk about wanting to make better laws, why not solve issues relating to matrimonial real property on reserves for first nations? Why not create a pay equity commission and tribunal, such as has been called for by the Native Women's Association of Canada? Why not reverse the old age security decision that will harm senior women, who live longer than men and because of workplace discrimination may be in particularly precarious financial situations?

I am proud to be part of a party fighting for the rights of women, not turning back the clock through back door attempts to reopen the abortion debate and through retrogressive policies that prejudice the majority of Canadians.

Mr. Speaker, I expect this motion to be defeated and I will oppose it.

[Stella Ambler, Conservative, Mississauga South, ON]

Mr. Speaker, I rise today to speak in favour of Motion No. 312 as proposed by the member for Kitchener Centre.

For the benefit of my colleagues on all sides of the House, I point out that the only thing Motion No. 312 does is to propose a study. Canadians have different views on this important law, which Motion No. 312 proposes to study, and that is even more reason for Parliament and the House to show leadership. Is it good for Canada if members of Parliament are afraid to even hear evidence about any law? This issue already provokes passionate debate among Canadians. I believe this passion can only fester if it continues to be ignored by Parliament. Is it not better to shed some light on a subject rather than to hide it away somewhere or, worse, to pretend it is not even there?

This House is always being asked to update and change many Canadian laws. After all that is what we do here. For example, we were asked to update our gambling laws by the member for Windsor—Tecumseh. Members may know him. Another recent example is the courts' calling for an update to our laws on prostitution. Would it not be strange if Parliament refused to even study an update of our 400-year-old definition of who is a human being in law? Canadians deserve better than that from us. They deserve a little more courage. Canadians expect more commitment to the true facts from us.

Some say the courts have already settled the question of who is a human being in Canada. To be clear, that is simply not true. Court after court has said, again and again, that this issue is so important that it is Parliament's responsibility to deliberate on it and resolve it for Canadians. Those who say the courts have settled this question should read the comments the courts have actually written about it. For example, here is what the late Justice Bertha Wilson said in her 1988 Morgentaler decision that threw out Canada's abortion law. She wrote:

The precise point in the development of the foetus at which the state's interest in its protection becomes "compelling" I leave to the informed judgment of the legislature which is in a position to receive guidance on the subject from all the relevant disciplines. It seems to me, however, that it might fall somewhere in the second trimester.

The late Justice Wilson was almost certainly not what we might understand as pro-life, yet Justice Wilson suggested almost exactly the study now proposed by the member for Kitchener Centre in Motion No. 312. If a woman like Justice Bertha Wilson, with her impeccable feminist credentials, supported such a parliamentary study, then surely anyone can. Everyone should.

I am informed that in the Tremblay v. Daigle decision, the court discussed the question of whether a fetus is a person and said:

Decisions based upon broad social, political, moral and economic choices are more appropriately left to the legislature.

In the decision on Winnipeg Child and Family Services v. D.F.G., the court said:

The point is that they are major changes attracting an array of consequences that would place the courts at the heart of a web of thorny moral and social issues which are better dealt with by elected legislators than by the courts.

Far from answering this question, the courts have actually suggested that Parliament holds the responsibility to deliberate on this question and to sort it out.

Subsection 223(1) of the Criminal Code of Canada actually says:

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, whether or not (a) it has breathed; (b) it has an independent circulation; or (c) the navel string is severed.

This definition in law was first written down in 1644 and dates from even before that. This 17th century law was incorporated into Canadian law in the 19th century at Confederation. This definition of a human being may have made sense when it was written 400 years ago, when leeches and bloodletting were standard medical treatment. People then knew nothing about a child's development before birth. However, does this definition of a human being make medical and scientific sense in the 21st century?

Our knowledge of a child's development has come a long way in 400 years. Here is what I have learned about a child's development before birth.

The child's heart begins to beat approximately 18 days after conception. At about six weeks, some of the child's brain activity can be detected. The eyes begin to open at eight weeks when all body systems are present. At nine weeks, although the mother cannot feel it, independent movement begins. By week 16, eyelashes form and fingerprints are completely established.

REM sleep has been recorded from a child at age 17 weeks, suggesting that the child is dreaming. By week 19, children have been observed to respond to specific sounds, and by week 20 are observed being startled by loud external noises. Lastly, by the seventh month, if the child is born, his or her lungs have developed enough to provide adequate ventilation without assistance. Other organs are sufficiently formed to support the child's life.

Canadians and this House should hear from experts about facts like these. Based on what I have learned about the development of a child before birth, it seems to me that a child is a human being well before the moment of complete birth. If this is true and accurate, our definition of a human being is wrong. If none of this is true or accurate, Canadians and this House should hear that too.

If the scientific evidence tells us that our legal definition of who is a human being is wrong, is it right for us to ignore it? If the facts of scientifically established evidence show that a child is a human being before the moment of complete birth, then surely Parliament has a responsibility to amend that definition of when a child becomes a human being.

Why would anyone oppose a respectful dialogue to gather evidence on such an important law? That is the objective of Motion No. 312. Motion No. 312 does not propose any legislation on any subject. It merely proposes that a parliamentary committee look at the evidence of the development of a child before the moment of complete birth.

I believe it is always helpful to shed light on an issue. Armed with complete knowledge, Parliament can assess what, if anything, should be done about subsection 223(1) and its definition of a human being. This is a necessary step in reconciling Canadian law with scientific facts.

However, if Parliament, acting on behalf of all Canadians, refuses even to discuss the issue, it will be letting down the vast majority of Canadians who believe in honest and just laws, grounded in reality as we now understand it.

To recap, Motion No. 312 calls for a respectful conversation among Canadians. Who better than Canadians could have that kind of conversation? Let us talk about Motion No. 312 and what it really says.

Need it be said that we live in a representative parliamentary democracy, governed by laws that should be informed by the best of current human knowledge? In 1988, the Supreme Court was clear that this question was not for the court to decide, but for Parliament. That is why this House is elected: to hear informed witnesses, to consider that testimony, to deliberate and to exercise good, informed judgment. This is an important issue that deserves that kind of testimony and deliberation.

Let me remind this House that Motion No. 312 insists that all options be reported and that no decision be made by the committee to which it is referred.

I also remind my colleagues that this is about fundamental, universal human rights and about a 400-year-old law, frozen in time. Should it be immune to scrutiny and our consideration? Surely not. I ask all members of this House to join me in supporting Motion No. 312.

[Irene Mathyssen, NDP, London—Fanshawe, ON]

Mr. Speaker, the motion being debated in the House today is nothing less than an attempt to reopen the abortion debate in Canada. This is quite literally a slap in the face to women who have fought long and hard for the right to control their own bodies and their ability to determine for themselves when they wish to have children. Motion No. 312 states:

That a special committee of the House be appointed and directed to review the declaration in Subsection 223(1) of the Criminal Code which states that a child becomes a human being only at the moment of complete birth....

The member for Kitchener Centre's desire to open up this debate has an end goal of changing the legislation to enable the fetus to be declared a human being. We are all very aware that such a change in the definition will place Canada directly on the regressive path to banning abortions.

The member for Kitchener Centre held a press conference earlier this week. In that press conference he quite clearly stated that the current definition of a person is an exclusion of a class of people. These types of statements distort the truth. In reality, over 90% of abortions in Canada are done in the first trimester. Only 2% to 3% are done after 16 weeks and no doctor in this country performs abortions past 20 or 21 weeks, except for compelling health or genetic reasons.

The comments by the member are a blatant attempt to misrepresent the facts. A fertilized egg is not a class of people, and I am offended that the member would shamelessly misrepresent the women's rights movement as an example of why we should open the door to changing abortion rights in Canada.

I would like to highlight several legal precedents that have already dealt with the question that Motion No. 312 raises, in particular Tremblay v. Daigle, Dobson v. Dobson, Winnipeg Child and Family Services v. G., Borowski v. Canada, and R. v. Morgentaler.

These rulings have concluded or noted that the fetus has never been a person nor been included in the meaning of “everyone” in the Charter of Rights and Freedoms; that a fetus must be born alive to enjoy rights, the born alive rule; and that the law has always treated a pregnant woman and her fetus as one person under the law.

We need not look far to see the danger of Motion No. 312. In the United States fetuses have legal personhood rights in at least 38 states, most through so-called fetal homicide laws, which are supposedly aimed at third parties who assault pregnant women.

In reality, these laws are used to justify prosecuting pregnant women under child welfare laws, and they function much like the 2008 bill of the member for Edmonton—Sherwood Park, Bill C-484, which proposed changes to the Criminal Code that would, if passed, also threaten a woman's right to choose. The intent of that bill was to amend the Criminal Code to have two charges laid against anyone killing a pregnant woman, and it would in effect have given legal rights to a fetus, thereby changing the definition of when a fetus becomes a person under the law. While the stated purpose of the bill was the protection for a woman and her fetus, in practice, like Motion No. 312, these laws are primarily used to justify the prosecution of women.

Motions and bills such as these create obvious dangers for those who counsel or perform abortions. They also turn pregnant women into lesser citizens whose rights are subordinated to those of a fertilized egg.

What is absolutely clear is that Motion No. 312 is taking aim at a woman's right to choose and is a direct attack on jurisprudence. Canada was once a world leader in the promotion and protection of women's rights and gender equality. It was committed to the view that gender equality is not only a human rights issue but also an essential component of sustainable development, social justice, peace and security.

These goals can only be achieved if women are able to participate as equal partners, decision-makers and beneficiaries of the sustainable development of their societies. How can Canada be considered a world leader in women's rights when we have members of Parliament suggesting that we revert to the barbaric days of gender inequality through the restriction of abortion?

When abortions are illegal, women do not stop having them. They only take more risks to access the service and these risks can have deadly consequences. For instance, before abortions were legalized in South Africa in 1997, there were an average of 425 deaths stemming from unsafe abortions every year. Today, the numbers are below 20.

In Latin America, most abortions are considered illegal, yet roughly 3.8 million procedures are performed each year and are directly linked to over 4,000 avoidable deaths.

The same happened here. Before abortion laws in Canada were struck down, there were over 35,000 illegal abortions taking place every year. Between 1926 and 1947, there were an estimated 4,000 to 6,000 deaths as a result of desperate women submitting themselves to clandestine procedures.

Despite assurances from the Prime Minister—known for his tight control over his caucus members—that the government does not plan to reopen the abortion debate, there is a troubling trend in the government's backdoor actions and its support for backbenchers who are continually trying to revive this issue.

In the last Parliament, the member for Winnipeg South tabled Bill C-510, An Act to Prevent Coercion of Pregnant Women to Abort (Roxanne's Law). In 2008, as I mentioned earlier, we saw Bill C-484, a bill that nearly the entire Conservative caucus supported, including the Prime Minister.

In 2010, as part of the maternal health initiative at the G8 summit in Muskoka, the government imposed a moratorium on the funding of safe abortions in 10 developing countries, emphasizing the protection of life yet ignoring the consequences of systemic rape in some of those countries. The statistics from those developing countries are heartbreaking. Approximately 70,000 women die each year due to unsafe abortions and 5 million are hospitalized because of complications resulting from unsafe abortions.

Women's groups in Canada fighting for comprehensive maternal health funding were told by a Conservative senator to shut up about abortion or else there might be a backlash. The senator contended that Canada was still a country with free and accessible abortion and to leave it at that.

This thinly veiled threat points to a greater fallacy, that abortion services are in fact available across Canada. Some provinces have very few hospitals providing services. Prince Edward Island has none. Canadian women living in rural areas and those in jurisdictions without an abortion provider travel long distances, encountering significant costs and additional stress. These constraints have the most impact on young women, those who have little job security, or women with significant family obligations.

Turning back the clock and reopening the debate on when human life begins is a dangerous path to take. The Canadian government should be working to strengthen women's rights instead of heading down a path that exposes women to the dangers of illicit, unsafe procedures.

Women in Canada have the right to choose. That has been established by the Supreme Court of Canada, and we demand that the government ensure this right's continuation and that all equality rights are protected. We need a government that will champion programs and policies that ensure that women's contributions to society, the economy, and leadership in this country are respected and encouraged. Access to safe, legal abortions are integral to these rights.

I want to make it very clear that I do not support this motion. New Democrats do not support this motion. We will actively fight against any motion or bill that will threaten a woman's right to choose. It is both frightening and insulting that the men who have introduced these bills and motions have so little respect for a woman's ability to determine what is best for her, her body and her family. The right rests solely with women who choose. No one has the right to interfere. The Supreme Court has upheld that right and so should the members of this Parliament.

[David Anderson, Conservative, Parliamentary Secretary to the Minister of Natural Resources and for the Canadian Wheat Board]

Mr. Speaker, it is a great honour to be here today. I want to point out that I received over 200 emails just last night supporting the position I am taking today. I have had over 1,500 responses encouraging me to support Motion No. 312. I find it interesting that many of them have come from young women. I think that is a rebuke to the opposition members, reminding them that there are young women in this country who believe in what is being proposed in today's motion.

I am pleased to address the matter of Motion No. 312. To do so, it is necessary to refer to subsection 223(1), Canada's 400-year-old definition of “human being”. It states:

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, whether or not

(a) it has breathed;

(b) it has an independent circulation; or

(c) the navel string is severed.

Many Canadians have questioned the accuracy of this definition. They ask: What is the medical evidence? Does a child become a human being at some point before the moment of complete birth, or is it at the point fixed by subsection 223(1)? Do Canadians believe that a child transforms from a non-human into a human being at the moment of complete birth, as subsection 223(1) dictates? Motion No. 312 attempts to address these questions. The answers to the questions have implications for Canadians and Canada's justice system. Motion No. 312 calls on this country's leaders, parliamentarians, to look at the evidence and ask if that evidence verifies or contradicts subsection 223(1).

We need to recognize that a majority of Canadians believe that human life begins long before a person is born. We can understand that if the evidence establishes that a child does in fact become a human being before the moment of complete birth, then subsection 223(1) has some major problems and it is actually a law that dehumanizes and excludes a whole class of human beings from legal protection. That is why we need to pass Motion No. 312 in order to get the facts about this issue.

This is a very serious matter. If we presently have a law that decrees a certain human being is not a human being, is that an honest and acceptable law? Could such a law ever be considered just or legitimate? If Parliament finds itself in a situation where it allows one law that decrees the dehumanization and exclusion of an entire class of people, what are the safeguards that will prevent us from finding reasons to decree that others are not human beings as well?

This is just not a theoretical and academic question, because many of the letters and petitions that I have received in my office have referenced the past. They point out that several times legislatures and supreme courts have supported other laws, which, like subsection 223(1), have decreed the exclusion of a class of people from legal protection. They mention, for example, in the 1850s the United States Supreme Court issued a decree that African Americans would not be considered human persons under U.S. law. Instead, they would be excluded from recognition even though they were human beings.

Early in the 20th century, our Canadian Supreme Court ruled that women were not to be considered human persons for purposes of all Canadian laws. Instead, they would be dehumanized and excluded from recognition even though they were human beings. In Germany in the 1930s, laws were passed that dehumanized and excluded mentally challenged people from the protection of law even though they were human beings.

Such laws have been opposed more and more over the last 400 years. By the middle of the last century, Canadians and others around the world reached an international consensus, which is that laws that dehumanize people and exclude any human beings are condemned. Instead, the consensus is that every person has an inherent worth and dignity based on who they are as a human being. Governments and laws can never legitimately assign or withhold the value of any human being. Instead, they can only recognize the worth and dignity with which each human being is created.

Subsection 223(1) has been overlooked until now, but the question really is: Does it directly contradict these principles of universal human rights that so many Canadians have fought for and have died to defend? Do we have a consensus in Canada in favour of universal human rights, or are we willing to accept that our government or laws may dehumanize and exclude classes of people with false definitions of what it means to be human? I do not think Canadians have come to that point. They continue to believe strongly in the unique value of each human life from its beginning to its natural conclusion and they would expect that Parliament is able to discuss these issues.

That belief in the value of human life needs to be protected and encouraged. It is not enough that we properly define human life. It is just as important that we continue as a culture to reaffirm the uniqueness and inherent dignity of every human life. That is how we find good and just solutions to the many life issues that we will be facing as legislators and as a country. To change subsection 223(1) and then to say that we do not recognize human life as having value in itself would lead us down some very dangerous paths.

This is not an unreasonable concern. Our culture is in danger of changing its view of the value of human life, and we all know that. There are many illustrations that are readily apparent.

There is an active attempt within the medical community to convince parents that it is necessary to eliminate Down's syndrome children before they are born. Recently, two European academics proposed that newborn infants should not be treated as human persons since newborn infants are essentially no different than children are before birth. I am told they used the Down's syndrome argument for elimination prior to birth in order to justify their afterbirth proposal.

The member for Kitchener Centre has found evidence that in Canada 40 to 50 children every year are born alive but later die of injuries inflicted by what is referred to as a termination of pregnancy. These are injuries that take place before birth when subsection 223(1) has taken human rights protection away from them.

The late Justice Bertha Wilson, who was as much a feminist as any person in this room, agreed that our existing criteria of complete birth were wrong. She believed that the interests and rights of a child before birth should be recognized and protected from some point in the second trimester of the child's development. Justice Wilson quite reasonably suggested that Parliament resolve this by studying evidence from all the relevant disciplines. This is the suggestion which is embodied in Motion No. 312. Justice Wilson did not think that this suggestion contradicted her rejection of Canada's last abortion law. Will abortion become illegal if we study this as Justice Wilson suggested? Absolutely not.

Why would a 400-year-old definition of human being be frozen in time forever? Why would a 400-year-old definition of human being be forever exempt from all democratic review? Why would a 400-year-old definition of human being be severed from advances in our medical understanding?

Why would parliamentarians turn their backs on this important discussion just because we are faced with diverse views on an important topic of human rights? Why would we not search for consensus through informed dialogue?

I ask members in the House to accept Justice Wilson's suggestion for Parliament to inform itself. I ask members to stand up for the Canadian consensus and legacy that every human being has an inherent worth and dignity which all our laws must recognize. I ask members to approve the open-minded, evidence-based study, which is all that Motion No. 312 proposes.