Eleni Bakopanos

[Justice, February 13th, 1998]

Mr. Speaker, I thank the hon. member for her question.

We are very pleased that the Supreme Court of Canada has decided to give leave to appeal to the Alberta Court of Queen's Bench in the Mills case. This case concerns the constitutionality of Bill C-46, a very important piece of legislation for victims of sexual assault which the government introduced in the last parliament and for which certain lower court decisions have led to uncertainty.

We would like to assure everyone that we will be supporting the leave to appeal Bill C-46 in the supreme court. We will intervene in order to uphold this very important piece of the legislation which strikes the right balance between victims rights—

[Justice, February 13th, 1998]

Mr. Speaker, if the hon. member would please listen, his leader's provincial attorney general said “I like the flexibility in conditional sentencing. As opposed to having the federal government developing some very specific guidelines, we have the courts reacting to the needs of their respective communities across the country”.

I repeat, if we have to we will.

[Justice, February 13th, 1998]

Mr. Speaker, I think the hon. member's allegations to this part of the House are based on false presumptions. First of all, no member of this House has ever said they are happy with some of the decisions that are rendered.

I would like to repeat what the Minister of Justice has said in this House. She has stressed this. If she has to, she will.

I will quote the attorney general of Alberta, from your province, who said “I like the flexibility in conditional sentencing. As opposed to having”—

[Justice, February 13th, 1998]

Mr. Speaker, obviously the hon. member describes a tragic case and no member in this House is pleased when they see that happen in the courts.

Conditional sentencing as the minister has said is a new provision. The minister has stated that she and all her provincial counterparts are monitoring closely what is happening in the lower courts.

I refer the hon. member to the attorney general of Alberta who has publicly discouraged the federal government from unilaterally establishing further guidelines for this provision.

As the minister has said in the House, if she has to she will amend the law.

[Ice Storm 1998, February 5th, 1998]

Mr. Speaker, last night we listened to the speeches of the political leaders who on behalf of all parliamentarians thanked Canadians for their generosity and compassion during the ice storm. However I was stunned and disappointed by the partisan remarks made by the leader of the Bloc Quebecois.

Quite frankly, once again, the leader of the Bloc Quebecois has taken advantage of a tragic situation to minimize the contributions made by the Canadian government, Health Canada, the RCMP and, more importantly, the Canadian Armed Forces. Worse still, he minimized the contribution made by the human resources development minister, who announced a $45 million emergency fund to help in the clean-up. He chose to launch a regrettable partisan attack on the minister.

Once again the separatists have shown that every opportunity is good for cheap partisan politics. They do not represent me, my constituents or the majority of Canadians and Quebeckers who applauded the fact that the government did not play partisan politics on the backs of Quebeckers during this disaster.

[Criminal Code, December 10th, 1997]

Mr. Speaker, at the outset I would like to congratulate the hon. member from Wild Rose for bringing in Bill C-215, to abolish the year and a day rule from the Criminal Code, and forward for discussion to the House.

I fully agree with him that it is opportune for this rule to be the subject of law reform. This issue has been of great interest to the Minister of Justice in Manitoba, his immediate predecessor and Canadians such as Mark Ward, whose brother Marvin was the unfortunate victim of a vicious assault in 1995 which put him in a coma and ultimately resulted in his death, but outside the year and a day time limit. They too have been arguing for reform.

Section 227 of the Criminal Code provides that no person commits culpable homicide or the offence of causing the death of a person by criminal negligence or by means of the commission of an offence under subsection 249(4) or subsection 255(3) unless the death occurs within one year and one day from the time of the occurrence of the last event by means of which the person caused or contributed to the cause of death.

Bill C-215 seeks to remove the time limit from section 227. In seeking to do so, it proposes to put in place a new section 227 in the Criminal Code.

The historic origins of the year and a day rule go all the way back to the Middle Ages in England. In those days, two distinct prosecutions could be brought with respect to a homicide: a private prosecution and a public one.

For the purpose of simplifying private prosecutions, the Statute of Gloucester, passed in 1278, provided clearly that prosecution for a serious act causing death could stand, if members of the family began proceedings at the latest a year and a day after the act suspected of having caused the death.

This simple statement of fact was subsequently interpreted, however, as limiting the right to prosecute.

Over time, prosecution for death was repealed and the year and a day rule became an irrefutable requirement in cases of homicide; if the Crown could not prove that death had taken place during this period, there could not be culpable homicide.

This ancient rule, an accident of history, survived the years, and was codified in Canada's first Criminal Code in 1892.

Over the years three arguments have been offered in support of the rule. One, a person should not remain almost indefinitely at risk of prosecution for murder or for another fatal offence. Two, if a person lives for a long time after the injury was sustained then it is more difficult to say that the injury caused the death. Three, even when the rule applies, the accused can usually be convicted of a serious offence.

There appears to be little current support for the continued existence of the year and a day rule, however. The following criticisms can and have been made. There is no statute of limitations for homicide in Canada and therefore a person can be subject to prosecution years after a killing has taken place.

Second, this is an arbitrary rule which prevents justice from being done in certain cases. Death may occur just outside the time limit and a causal link may be proven, yet in such a case there would be no culpable homicide.

Third, it can also prevent justice from being done in cases involving long term causes of death. Another argument is that with modern life supporting technology, persons can be kept alive longer, yet this ancient rule continues to operate. Modern science can also assist in the determination of the cause of death, even after the passage of a number of years, so the causation argument is not strong.

Experiences in jurisdictions which do not have this rule seem to indicate that criminal justice systems can operate fairly and effectively without the rule. Last but not least, juries can and do have to consider complex evidence as to the cause of death, and if the crown does not prove beyond a reasonable doubt that the accused caused the victim's death then the prosecution will fail.

In June 1987, in a document entitled Recodifying Criminal Law , the Law Reform Commission of Canada recommended that a new rule of causation be added to the Criminal Code to replace the specific provisions on causal link with respect to homicide, including the year and a day rule. In its working paper on homicide, the LRC took the following position:

Section 210—now section 227—which provides that no person commits culpable homicide unless the death occurs within a period of a year and a day seems highly anachronistic.

The purpose of this rule was undoubtedly to spare a jury from having to rule on cases where the link between the reprehensible act and the victim's death was difficult to establish.

Nowadays, however, its usefulness is highly disputable, in so far as this matter can be satisfactorily resolved through existing medical and scientific knowledge.

In June 1991 the federal-provincial working group on homicide recommended a rule of causation to replace sections 224 and 227 of the Criminal Code to read:

Everyone causes death, when their conduct significantly contributes to death, notwithstanding that there may be other significant contributing factors and that such conduct may not alone have caused death.

As well, the Department of Justice consulted on a possible general rule of causation for the Criminal Code as part of the consultations on the general part in 1994 and 1995, but to date a reform effort to codify a general rule of causation has not proceeded. In other jurisdictions change has already taken place.

In July 1994, the law commission of England published a consultation paper on the year and a day rule with respect to murder and other related offences.

The paper outlines six options: one, maintain the rule; two, make it a rebuttable presumption; three, amend the rule and extend the limitation; four, abolish the rule with respect to certain offences, but keep it for others; five, abolish the rule and replace it with a limitation regarding the prosecution of homicide offences; and six, abolish the rule.

The Law Reform (Year and a Day Rule) Act passed by the U.K. in 1996 abolishes the year and a day rule, except in cases of acts or omissions that had taken place before the legislation took effect. The act provides that it is necessary to obtain the consent of the attorney general before instituting proceedings in respect of an offence when it is alleged that the injuries that caused death were sustained more than three years before death, or in cases where the accused has already been found guilty of an offence related to the death.

In June 1997 the Law Reform Commission of Hong Kong issued its report on the year and a day rule in homicide. The commission concluded that the rule is no longer necessary or appropriate, having regard to the present state of modern medical knowledge and the availability of life support machines.

The commission recommended that the rule ought to be abolished in relation to all offences involving death and suicide. It considered whether there ought to be safeguards to protect against unfair or late prosecutions but ultimately decided that it was unnecessary.

In summary, while there can be little doubt that change ought to occur, it may be premature to support this bill at this time. I think we should look to see if there is any need for safeguards to be put in place, as has been done in England, for example.

Bill C-215 provides an excellent legislative prototype for what it is we ought to achieve and will be extremely useful for the government in its examination of this important issue.

The Minister of Justice is committed to bringing reform to this area of the law and the work of the hon. member for Wild Rose and other members of this House who will be supporting Bill C-215 has been important in achieving this objective.

[Rights Of Children, December 10th, 1997]

Mr. Speaker, on December 13, 1991 Canada ratified the UN Convention on the Rights of the Child, ensuring the right of every child to a standard of living adequate for the child's physical, mental, spiritual, moral and social development. However development cannot begin unless we provide the most fundamental necessities of housing, clothing and, above all, nutrition.

The government's commitment to children is very clearly demonstrated through our numerous initiatives such as the prenatal program, the Canada child tax benefit and our national children's agenda.

We all need to do our part in our communities to see that children do not go hungry, especially at this time of year.

When I held my open house for the holidays, I invited the people of the riding of Ahuntsic to help out those less fortunate by donating food to Magasin-Partage of the community help and nutrition service (SNAC). Thanks to these donations, some 350 families will have food for the holidays.

I congratulate my colleagues who have put forward such initiatives. We must all do our part, not only during this holiday season but year round.

[Division No. 68, December 9th, 1997]

Mr. Speaker, the involvement of young people in prostitution is a serious and tragic problem that has become more evident over recent years as the hon. member says. I want to thank the hon. member for bringing this to the attention of the House. It is particularly troublesome because young people by virtue of their age and legal status are more vulnerable than adults to danger, exploitation and abuse.

The federal government is extremely concerned about this problem, despite what the member said. For this reason it introduced Bill C-27, which Parliament passed last spring, to address some of the issues surrounding the involvement of young people in prostitution.

These new laws are intended to give the police more efficient means to enforce the offence of obtaining the sexual services of a person under the age of 18.

In addition to easing the burden of young witnesses in prostitution related cases, Parliament also created a very severe penalty for those procurers who use violence or intimidation against youth involved in prostitution.

One thing is clear, however. Criminal law alone will never suffice to eradicate child and youth prostitution. It is a community problem that must be dealt with on many fronts, including the areas of social policy and education as the hon. member indicated.

It is only by co-operating together at all levels, federal, provincial and territorial, that we will be able to tackle the root causes underlying the involvement of youth. It is anticipated that in late December, the federal-provincial-territorial working group on prostitution will be presenting to the federal, provincial and territorial ministers responsible for justice, its recommendations on legislation and policy practices concerning prostitution related activities.

A status report was presented recently at the federal-provincial meeting in early December in Montreal. The issue of child sexual exploitation was a matter of concern to ministers. At the urging of British Columbia, the Minister of Justice agreed to draft amendments to the Criminal Code to strengthen enforcement efforts against those who buy sex from children.

Also, the British Columbia and other provincial ministers further requested to increase the age of consent to sexual activity to 16. This also will be seriously considered.

Therefore we will be coming back to the House with some recommendations.

[Access To Information Act, December 5th, 1997]

Mr. Speaker, I wish to begin by commending my colleague, the hon. member for Brampton West—Mississauga, for bringing this important issue for debate before the House and for her continued commitment to safeguarding the rights of Canadian citizens and assuring, as a representative of the people, that government becomes more open and accountable.

I am pleased to have this opportunity to speak on Bill C-208. The bill proposes to add to the Access to Information Act an infraction for destroying documents that are subject to the act with intent to deny access.

Before talking about the specifics of the bill, I wish to take a moment to provide some background to my comments. Canadians have had the benefit of a federal Access to Information Act since 1983.

For fifteen years now, Canadians have enjoyed a high degree of access to federal government information. I must emphasize that Canada is one of the rare countries where such legislative measures exist. The law states that access must be granted to information on the federal government.

The government can only refuse access to information on the basis of a few very specific exceptions. Whenever the government refuses access to information, people have the legal right to file a complaint with the information commissioner and to have the government's decision reviewed by the federal court.

Access to government information is a fundamental right in a democratic system. Earlier this year, the Supreme Court of Canada stated that the overriding goal of legislation concerning access to information was to promote democracy.

As the court ruled, in Dagg v. Minister of Finance, 1997, the purpose of the right to have access to information held by the government is to improve government operations by making the government more efficient, receptive and accountable.

In fact, in totalitarian states, the people are denied this right and, as a result, they do not have this means of making the government accountable.

This is not to say that our Access to Information Act could not be improved upon and brought more up to date. I believe the hon. member is trying to improve the act with the amendment proposed in Bill C-208.

One can argue that there is a gap in the protection currently offered by the act since it does not contain a penalty for the deliberate alteration or destruction of a record. The act does contain a penalty but it is a penalty for obstructing the work of the information commissioner.

The act also authorizes the commissioner to disclose to the Attorney General of Canada information relating to the commission of an offence against any law of Canada by any officer or employee of a federal government institution. The bill before us today would add an offence for actions that one can legitimately see as actions that intend to defeat the purpose of the act.

For that reason, I would agree with the hon. member that the Access to Information Act should include a penalty for deliberately destroying documents that are subject to the act. I believe that such an action is unacceptable and therefore should be punished. For this reason, I support the general goal of Bill C-208. Did I surprise you? I do not however support the specifics of the bill and I will explain.

It could be argued that section 126 of the Criminal Code applies to a situation where a person wilfully destroys a document for the purpose of impeding the right to access provided under the Access to Information Act. Section 126 of the Criminal Code provides that “Every one who, without lawful excuse, contravenes an Act of Parliament by wilfully doing anything that it forbids—is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years”.

The stiffness of the penalty provided in section 126 could make some wonder whether it is necessary to provide a penalty in the Access to Information Act for wilfully destroying documents that are subject to the act. They have in mind a specific penalty that would not be quite as harsh as the maximum of two years' imprisonment in section 126 for committing such a criminal act.

I am of the opinion that the penalty in the Criminal Code is probably too harsh and that, if a specific penalty is added to the Access to Information Act, it should be less harsh than the penalty now provided for in section 126 of the Criminal Code.

What is proposed in Bill C-208? It is to create an indictable offence with a maximum penalty of five years in prison which is a heavier penalty than the penalty provided for in section 126. For this reason, I cannot support the specifics of Bill C-208. I understand the hon. member wants to make the point that the destruction or alteration of documents is serious and we all agree it is but it should also be put into perspective.

In my view, a maximum of five years is too heavy a penalty for destroying documents. This penalty would be more severely punished than the offence of assault causing bodily harm, which is a hybrid offence that carries a maximum penalty of 18 months when prosecuted on summary conviction. Destroying documents, while undoubtedly serious, cannot be compared to assault causing bodily harm.

I wish to make another comment regarding the offence provided for in Bill C-208. When an offence is a criminal one, the accused may choose to appear before a judge and jury. This is a slow process.

In addition, an individual charged with a criminal offence is entitled to a preliminary hearing, which can also slow down the judicial process.

In my opinion, the destruction of documents is more comparable to the offence of mischief with respect to property, now provided for under section 430 of the Criminal Code. This is a hybrid offence and the maximum penalty, if the Crown decides to proceed by way of indictment, is two years' imprisonment. But, if the Crown decides to proceed by way of summary conviction, the maximum penalty is a $2,000 fine or six months' imprisonment, or both.

To conclude, I believe the need to create an offence for deliberate destruction of records in order to thwart the Access to Information Act is an issue that should be considered within the context of the reform of the act. I believe a case can be made that the addition of such an offence would strengthen the principles of openness and accountability that are inherent in the access to information legislation.

I also believe that particular attention should be paid to determining the appropriate sentence to be attached to the offence, which would be proportional to penalties provided for comparable offences.

[Canadian Centre Against Sexual Abuse, December 5th, 1997]

Mr. Speaker, I can tell the House that the matter is under consideration and that no decision has yet been taken. If I understand correctly, no one has signed a commitment to this centre on behalf of the government. We have a number of similar requests, and the government will decide shortly.