John Maloney

[Questions On The Order Paper, April 24th, 2001]

(a) The total cost incurred on this case to March 7, 2001, is $525,716.13. In addition to the costs at trial, this figure includes the costs of the interlocutory appeal to the Alberta Court of Appeal and to the Supreme Court of Canada where the interlocutory injunction was set aside. The sum also includes costs for expert evidence used at trial.

(b) As of March 7, the judgment of the Alberta Court of Queen's Bench was still on reserve. Whether further costs will be incurred, and the extent of these costs, will depend on the order and the reasons issued by the trial court, as well as decisions taken as a result by either of the parties to appeal or not to appeal that judgement in whole or in part.

Question No. 11—

[Computer Hackers, April 6th, 2001]

Mr. Speaker, I am pleased to have the opportunity to speak to Motion No. 80. I would thank the hon. member for Saskatoon—Humboldt for raising an issue of national and international importance.

Issues relating to cyber-crime, such as hacking and malicious virus dissemination, have been widely reported over recent months and has caused government and industry and the public to turn their attention to these matters.

The government shares concerns related to issues surrounding cyber-crime. However, it is important to find out that our concerns are related to the proliferation of such activity and not about our ability to prosecute such offenders as we have laws that address the problem on the books already.

Although the Minister of Justice agrees with the principle of the motion, she cannot support it as presented. The simple answer or reason is that our current criminal code provisions already criminalize this type of behaviour.

A short 10 years ago the Internet was in its commercial infancy. Now the expansion of the Internet and the technologies associated with it in a very real manner have revolutionized our world. The Internet has changed the way we communicate with one another, the way we share information and the way we relate to each other. Computer networks and the Internet in particular have managed to shrink our vast world.

Today's technology allows us to share information with people in other countries and on other continents with minimal expense, but the Internet has also created corresponding opportunities for criminals.

Like everyone else, criminals have embraced high technology to further their goals. We are becoming increasingly aware of the threats posed by individuals using the Internet. Hate literature and child pornography can be disseminated easily. Even traditional crimes such as fraud and forgery can now be committed with the aid of the Internet.

Hackers, which are addressed in the member's motion, can wreak havoc on our economic infrastructure by bringing down critical computer and communications systems. Serious havoc can even result from a prank.

There have been incidents where teenagers either unknowingly or fully understanding the implications of their actions have hacked into sensitive websites. The potential damage from a concerted attack by cyber-terrorists on a country's critical infrastructure could be catastrophic. This is what makes this type of behaviour so troubling.

That being said, Canadians are fully protected from and equipped to deal with the conduct described in the member's motion. In fact laws covering this type of behaviour have been on our books for over 15 years. In 1985 parliament created a separate category of offences for hackers, now section 342.1 of the criminal code. This provision makes it illegal for any person to obtain unauthorized access to a computer service. Parliament at the time recognized that this could be a serious crime, and it is therefore punishable with a maximum term of imprisonment of 10 years.

With respect to persons knowingly and maliciously disseminating computer viruses, parliament also made amendments in 1985 to the crime of mischief which is also punishable by a maximum term of imprisonment of 10 years. If actual danger to life is caused the maximum penalty is life imprisonment.

These 1985 amendments make it a crime to wilfully tamper with computer data. This includes conduct such as obstructing or interfering with the lawful use of computer data or a computer system. Additionally the traditional laws of attempt, conspiracy and aiding and abetting will apply to these offences.

It is clear that our current laws already criminalize the malicious dissemination of computer viruses that cause harm, as well as attempts and other forms of complicity in such crimes. Law enforcement has and will continue to use these provisions successfully as in the recent mafia boy case, where the accused was charged with 64 counts of hacking and mischief.

As stated earlier we are appreciative of the member's motion. However the motion may give the impression that Canada is not prepared or equipped legally to deal with such crimes. This is obviously not correct.

In a recent independent international study on the readiness of national laws to deal with cyber-crime, McConnell International found that Canada's cyber-crime laws are among the world's strongest.

Although Canada is a world leader in this regard, the government is committed to ensuring that our laws speak to our changing technological environment, while having due regard for fundamental human rights.

Canada is an active participant in many international fora which are currently studying both the effects and solutions to the issues raised by cyber-crime. These include among others the G-8, the Council of Europe, the United Nations, the Commonwealth Secretariat, OECD and the Organization of American States.

As observers to the Council of Europe, Canadian delegates have been integral in negotiating a draft convention on cyber-crime that will be adopted later this year and that will stand as a benchmark for international instruments in this area. At the G-8 Canada continues its leadership role on cyber-crime issues and is looking forward to its presidency in the year 2002.

In summary, the existing provisions of the criminal code protect Canadians fully against those who would use technologies such as the Internet for the criminal purposes outlined in the motion. The government, in co-operation with its international partners, the law enforcement industry, provinces, territories and civil liberties groups, is working to ensure that the tools and laws it employs are relevant and appropriate in today's fast paced environment.

In response to this international work, Canada is reviewing its laws to ensure that Canada's laws remain up to date and that Canada remains a world leader in this area.

[Organized Crime, April 6th, 2001]

Mr. Speaker, I thank the hon. member for his question and for acknowledging that this is an excellent piece of legislation.

Certainly intimidation is a very serious factor in organized crime. Police officers, prosecutors and all sorts of people, even members of parliament, have been intimidated.

The legislation introduces significant penalties that would certainly prohibit or work against that type of activity by organized crime. This is for the betterment of the entire country.

[Judges Act, April 6th, 2001]

Mr. Speaker, I am very pleased to be able to lead off the debate on the third reading of Bill C-12, an act to amend the Judges Act and to amend another act in consequence.

The bill would make certain amendments to the Judges Act that would ensure appropriate and fair compensation for the federally appointed judiciary in Canada. It is intended to implement the commitments made by the government in its response to the report of the 1999 Judicial Compensation and Benefits Commission.

I would like to emphasize that the chair of the Judicial Compensation and Benefits Commission, Mr. Richard Drouin, who appeared as a witness before the House of Commons Standing Committee on Justice and Human Rights, expressed his satisfaction with the government's decision to implement most of the recommendations enumerated in the commission's report.

The strength of Canada's judiciary is a key factor in our prosperity and health as a nation. As the guardians of the constitutional right of Canadians to have peace, order and good government, judges form an important pillar in our democratic society.

An independent judiciary is essential to the rule of law. Judges must be free from undue influence of any kind, be it from those with money or power. There is a growing recognition that stability, human security and the rule of law are necessary preconditions to economic growth, and there is a growing appreciation that an independent judiciary with the proper resources is the first step down this path.

The Government of Canada is committed to the principle of judicial independence, as it is a fundamental precondition to ensuring the vitality of the rule of law in our democratic system of government. The three constitutionally required elements of judicial independence are security of tenure, independence of administration of matters relating to the judicial function, and financial security. It is in direct support of the principle of judicial independence that section 100 of the constitution has conferred on parliament the important task of establishing financial security of a federally appointed judiciary.

I am very happy to report that during the second reading debate the Bloc Quebecois and the Progressive Conservative Party indicated their support for Bill C-12.

The Canadian Bar Association has also expressed its support for Bill C-12. In fact, in its written submissions to the House of Commons Standing Committee on Justice and Human Rights, the Canadian Bar Association expressed the view that Bill C-12 not only enhances judicial independence in promoting financial security for members of the judiciary but also helps to attract high quality candidates to the judiciary.

I would ask all members of the House for their support. This bill would ensure that our judges are compensated fairly and appropriately in order to maintain the quality and independence of Canada's judiciary.

I want to make reference to the hon. member for Ancaster—Dundas—Flamborough—Aldershot, who has proposed an amendment for Bill C-12. His proposed amendment to Bill C-12 would require that the transcripts of testimony heard before the Supreme Court of Canada be made more accessible to the public.

More specifically, the proposed amendment, an addition to section 75 of the Judges Act, would require the Registrar of the Supreme Court of Canada to ensure that testimony heard before the court in open session be recorded in electronic format and made accessible to the public in the same manner as the Debates of parliament.

With the greatest of respect for the member, we cannot accept this proposed amendment as it is not within the scope of Bill C-12, nor is the Judges Act the appropriate place for such an amendment.

Any matter relating to procedure before the Supreme Court of Canada would fall under the jurisdiction of the Supreme Court of Canada Act. Section 75 of the Judges Act applies solely to administrative matters relating to the judiciary.

Further, as members know, Bill C-12 would make amendments to the Judges Act that would ensure appropriate and fair compensation for the federally appointed judiciary. It is intended to implement the commitments made by the government in its response to the report of the 1999 Judicial Compensation and Benefits Commission.

I thank the hon. members of the House for their attention today and ask for their support in the passage of Bill C-12.

[Great Lakes, March 30th, 2001]

Mr. Speaker, the Great Lakes are home to 45% of Canada's industrial capacity and 25% of Canada's agricultural capacity, providing for $180 billion in annual Canada-U.S. trade.

The Great Lakes basin includes eight of the twenty largest Canadian cities and 9.2 million Canadian inhabitants.

Water level fluctuations in the Great Lakes result from environmental factors such as precipitation, runoff from the drainage basin, inflow from upstream lakes and rivers and outflow to downstream lakes and rivers, as well as human factors, such as dredging, diversions and consumption.

This year lake levels are low once again, which is a cause for alarm for Canadians whose lives depend on these bodies of water for employment and recreation.

I call upon the government to take action in the fight against unnecessary water loss in the Great Lakes due to human involvement. It is essential that we maintain this valuable resource for Canadians today and for Canadians tomorrow.

[Youth Criminal Justice Act, March 26th, 2001]

Mr. Speaker, there are some critics from Quebec who feel that Bill C-7 is too tough. On the other hand there is no hesitation in Quebec of utilizing the current transfer provisions under the Young Offenders Act to transfer young offenders from youth court to adult court.

Could the member for Beauce please explain this phenomenon and elaborate briefly on the current transfer provisions under Bill C-7?

[Youth Criminal Justice Act, March 26th, 2001]

Mr. Speaker, the member for New Brunswick Southwest suggested to the House that there should be criminal sanctions to a parent for the offences of his or her child.

I would like to ask the member for Halifax West if he feels that punishing a bad parent is going to make him or her a good parent.

[Youth Criminal Justice Act, March 26th, 2001]

Mr. Speaker, my friend opposite made a comment that there are not many weaknesses in Bill C-7. I agree.

He refers to children 11 and under and says there are no repercussions. Is he not aware that all provinces, to my knowledge, have youth protection agencies that intervene on a regular basis for those individuals? Does he really want to jail a 10 year old?

His other point was about the frustration of our police officers. Under the act our police officers will be the gatekeepers. They will be at the front end. Under the advice of crown attorneys they will be able to use their discretion. Is that not good? Will it not address some of the concerns of the police at this time?

[Division No. 36, March 26th, 2001]

Mr. Speaker, I certainly agree with the preamble to the member's question.

There is a certain stigmatization that goes with knowing the name of a young offender, especially when he or she has committed a minor crime. That certainly counteracts rehabilitation and reintegration, not only within the youth's community but within school as well. These people get targeted. Little Johnny is a bad boy so we should not associate with him. How can that help with the individual's reintegration into the community?

With regard to serious offences, I have already indicated that names will be and can be published.

[Division No. 36, March 26th, 2001]

Mr. Speaker, I should like to address some deeply disturbing comments that were made when the bill was last before the House at second reading.

We have heard many comments from the benches opposite about the need for decorum and restraint in the House. The line of parliamentary respectability was crossed when the member for Berthier—Montcalm singled out a particular official of the Department of Justice and attacked the individual personally. Perhaps he may not agree with the point of view of the individual, but he should not denigrate those who cannot stand in this place to defend themselves. It lowers the level of debate in the House.

If the member's arguments are so compelling against Bill C-7 on substance, let these arguments stand on their own. His views should be considered on their own value. We do not need to debase this place with personal recriminations. The member for Berthier-Montcalm made comments that were extremely unparliamentary and the individual targeted had no opportunity to rebut those allegations.

I will now address the youth criminal justice act. One may ask why we need a new youth justice legislation? The youth justice system under the Young Offenders Act is not working as well as it should for Canadians. Too many young people are charged and often incarcerated with questionable results. Procedural protections for young people are not adequate and too many youth end up serving custodial sentences with adults.

The overarching principles are unclear and conflicting. There are disparities and unfairness in youth sentencing. Interventions are not appropriately targeted to the seriousness of the offences. They are not adequately meaningful for individual offenders and victims or adequately supportive of rehabilitation and reintegration.

The proposed youth criminal justice act attempts to address these fundamental flaws. First, with regard to targeting responses of the youth justice system to the seriousness of the offence, Canada's failure to target the most serious interventions to the most serious crimes has resulted in one of the highest youth incarceration rates in the world. The proposed law would provide a statutory framework through principles, presumption, new sentencing and front end options, so that serious violent offenders are treated seriously and constructive measures are available for the vast majority of less serious offences.

The presumption in favour of an adult sentence for the offences of murder, attempted murder, manslaughter and aggravated sexual assault has been expanded to include repeat serious violent offences. While an adult sentence could be applied to youth 14 years old and above under the Young Offenders Act, the presumptions would now apply to them as well unless a province or territory opts for a higher age.

Privacy protections currently do not apply to youth receiving adult sentences, and this would be continued. Where a youth is convicted of one of the most serious presumptive offences and receives a youth sentence rather than an adult sentence, the privacy protections would not apply unless the judge ruled otherwise.

Enhanced options for police and crown discretion at the front end, together with statutory presumptions about when the formal court process and custody are not be used, will lead to meaningful, effective and faster resolutions of the majority of less serious offending behaviour.

The overall effect of this targeted youth justice system should be fewer young people being put through the formal justice system and receiving custody sentences for less serious offences and an overall reduction in our youth custody rates. It would also clarify the principles of the youth justice system.

The proposed youth criminal justice act sets out the purpose of the youth justice system through its principles. Unlike the Young Offenders Act, the principles of the new bill would provide clear direction, establish structure for the application of principles and thereby resolve inconsistencies. The new principles would reinforce that the criminal justice system for youth is different from the one for adults. It emphasizes preventing crime, ensuring meaningful consequences for offending behaviour, and rehabilitating and reintegrating the young person as the ways it would contribute to the protection of society.

It would ensure fairness and proportionality in sentencing. The sentencing principles in the proposed law would provide a clear, consistent and coherent code for youth sentences. They are intended to reduce disparity and reflect a fundamentally fairer approach to sentencing. Unlike the Young Offenders Act, the new legislation states that the purpose of sentencing is to hold a young person accountable for the offence committed by imposing meaningful consequences and promoting the rehabilitation and reintegration of the young person.

To reverse the current unfairness, the new law would provide that the punishment imposed on a young person must not be greater than what would be appropriate for an adult in similar circumstances. Given the significant disparity between what similarly situated youth receive for similar offences, principles of proportionality among youth sentences are included in the new legislation. Proportionality sets the framework or limits within which the needs of the young person committing the offence are to be addressed through the criminal justice system to achieve rehabilitation and reintegration.

It would respect and protect rights. The Young Offenders Act does not adequately respect the rights of young people. It would provide that a youth could be transferred to an adult court before conviction and lose age appropriate due process protections including privacy protections on the basis of an unproven charge.

Transfer proceedings have lasted as long as two years, which impedes access to a speedy trial. Once transferred into the adult stream, youth as young as 14 could be required to serve their sentences in adult provincial or federal correctional facilities at the discretion of the judge.

The proposed law would address these shortcomings by providing that all the proceedings against a youth take place in the youth court where age appropriate due process protections apply. The hearing on the appropriateness of an adult sentence would only occur after a finding of guilt and all the evidence about the offence had been heard. The youth justice procedure for the most serious offences would be speedier, retain age appropriate due process protection and be more respectful of the presumption of innocence.

Bill C-7 also includes the presumption that if under 18 a youth would serve an adult sentence in a youth facility. This is more consistent with the spirit of the United Nations convention on the rights of the child, which is expressly referenced in the preamble of the new legislation.

It would enable meaningful consequences aimed at rehabilitation. While youth may know that their behaviour is wrong, they may not fully understand the nature and consequences of their acts for themselves and for others. Some young people lack the structure, guidance and support in their communities needed to change behavioural patterns and overcome damaging influences.

Many of the new provisions in the proposed youth criminal justice act would allow for individualized interventions that instruct the youth. Police, crowns and judges would be given statutory authority to warn and caution young people that their behaviour was not acceptable and more serious consequences may follow if they repeat that behaviour.

Conferencing is encouraged at many stages of the process, which could allow the young person to be a participant in a process with victims, family members and others to learn about the consequences of his or her behaviour and to develop ways to make amends.

The range of sentencing options would be expanded. In addition to sentences that allow the young person to attempt to repair some of the harm caused through restitution, compensation, community service orders, there would also be new sentences that provide for close supervision and support in the community.

Changed behaviour in the community is key to addressing youth crime. These sentences include attendance orders, intensive support, supervision orders, and deferred custody and supervision orders. The proposed law would also provide a new sentence for the most violent and troubled youth stressing rehabilitation and support. It is a serious commitment to the protection of society by making every effort to stop the recurrence of the most violent youth conduct.

It would support reintegration after custody. A major flaw of the Young Offenders Act is that it currently does not provide sufficient provisions for a safe, graduated reintegration into the community.

The proposed law would include provisions to assist a young person's reintegration into the community, which protects the public by guarding against further crime. It would provide that periods of incarceration will be followed by periods of supervision in the community through custody and supervision orders. To ensure truth in sentencing and clarity for the young person, at the time of imposing a sentence, the judge would state in open court the portion of time that was to be served in custody and the portion to be served in the community. Breaching conditions of the community supervision could result in the youth being returned to custody.

Studies demonstrate that treatment is more effective if delivered in the community instead of in custody. The reintegration provisions encourage continuity between the custody and the community portions of the sentence through increased reintegration planning, which takes into account the youth's needs throughout the whole sentence and, through reintegration, leaves for specific purposes of up to 30 days.

It would encourage an inclusive approach to youth crime. The youth justice system under the Young Offenders Act has been criticized for not appropriately involving victims, parents, family, community and representatives from other disciplines. Youth crime is often a complex phenomenon. Involving others can improve understanding and provide support for the victims, youths, families and communities in responding constructively and meaningfully to the offending behaviour.

The proposed law specifically encourages conferences at many stages of the proceedings, including those involving the police, sentencing judges and provincial directors. Some conferences may involve bringing together professionals such as child care workers, school psychologists or others who are already involved with the youth to seek advice and verify continuity of services. Others may be in the nature of sentencing circles or family group conferences involving victims, offenders and their families.

The proposed law would also expand the possible mandates of youth justice committees. These are committees of citizens who can assist in any aspect of the administration of the act or in any program or service for young people. They can encourage community members and agencies to take an active role in supporting constructive resolutions to the victims, families, youth and others implicated by youth crime.

The proposed youth criminal justice act corrects fundamental weaknesses of the Young Offenders Act and will result in a fair and more effective youth justice system.

In the time left, I would like to comment on some of the specific provisions of the bill as they relate to the publication of names. This is a contentious element of youth justice policy, with some arguing for publication in all cases and some opposing it in all cases. Some argue the public needs to know who the criminals are in order to protect itself from them. They argue protection of society requires the press to publish the names of all those who commit an offence.

Before accepting the argument, we should also ask ourselves how much additional protection society gets from the publication of names of adults. Unless we know the person named, or the case is of such importance that it is in the paper for weeks or months, do we pay much attention when we read in the paper the name of a person prosecuted for or found guilty of a particular offence? I am not sure we do. In most cases, a few minutes after reading it, we have already forgotten the name. This hardly can be a factor contributing to the protection of society.

Another argument against the ban of publication of names is that it is contrary to an open justice system and to the freedom of the press. It is important to emphasize that the youth justice system is an open justice system. Members of the public can attend and the press can report every detail of the case and the rendering of justice, except for information which would identify the youth. I am sure that we all recognize that freedom of the press is an important element of a free and democratic society. It should only be limited by law and in a reasonable manner that can be justified in a free and democratic society.

The current legislation governing young offenders, the Young Offenders Act, prohibits publication in all cases where the youth is dealt with in the youth system. The provisions prohibiting publication were challenged almost as soon as the Young Offenders Act came into force. The courts have decided that the provisions were a reasonable limitation on the freedom of the press and therefore valid legislation. The courts came to that conclusion because they recognized that the rehabilitation of the youth was an important enough societal objective to require balancing the right to the freedom of the press with this objective rehabilitation of the youth.

The new legislation would continue to allow publication of offenders' names in all cases where a youth was sentenced to an adult penalty. It would also continue to protect the names of the great majority of youth who commit offences and are sentenced to a youth penalty. It will be an offence to publish their names even after they became adults, unless the youth court considers them to fall under two very exceptional circumstances. First, if a youth is charged with a serious offence and is considered dangerous at large and publication is necessary to apprehend the youth, then the case publication would be allowed for five days.

Second, the youth has asked to be able to publish and the court is convinced it would be in the best interests of the youth to publish information about his or her experience with the youth criminal justice system.

In the first case the judge will authorize the police to publish for five days the name of the youth wanted. In the second case the judge will authorize the youth who asked permission to do so to publish information or cause the information to be published on his or her being dealt with in the criminal justice system. Once the youth has made the information public it is no longer protected.

Under the proposed legislation the presumption in favour of privacy would not apply to a very small category of youth who receive youth sentences. The names of youth who would be given a youth sentence for a presumptive office of murder, attempted murder, manslaughter, aggravated sexual assault or repeat violent offences could be published unless the judge prohibits publication.

The youth court judge would prohibit publication in two instances. First, when the youth or the crown applied for a publication ban and the judge considers it appropriate in light of the importance of rehabilitating the youth in the public interest. Second, when the crown gave notice that even though it was a presumptive offence, the crown would not seek an adult penalty. The crown would do so when it was convinced that the circumstances of the offence or of the offender did not warrant an adult penalty. In that case the judge would impose a youth penalty would prohibit publication.

The legislation would not only protect the privacy of young offenders but also prohibit publication of names of youth who were victims of young offenders, and the names of youth who were witnesses in a young person's trial. The youth victim or witness could only publish information on their role in the criminal justice system when they became an adult, with the permission of the court before that time, or with the consent of his or her parent.

I believe these provisions strike an appropriate balance between the freedom of the press, which is a fundamental right in a democratic society, and the interest of society in protecting itself by the rehabilitation of young persons who have committed offences.

I will address one other area on the issue of adult sentences. Under the Young Offenders Act, if a youth is 14 or older at the time of the alleged indictable offence, the provincial prosecutor can apply to have the youth transferred to adult court, as I have indicated. In addition, the Young Offenders Act sets out a category of presumptive offences which includes murder, attempted murder, manslaughter and aggravated sexual assault. It is presumed that the individuals charged with a presumptive offence who were 16 or 17 years old at the time the alleged offence occurred will be transferred to adult court and receive adult sentences.

When a youth is transferred to adult court, the rules applicable to adults apply to the youth and the special protections granted by the Young Offenders Act, including the ban on publication do not apply. In addition, a transfer hearing which takes place before the trial begins can significantly delay the start of the trial. Some transfer hearings, including appeals of the decision to transfer, have taken more than two years to complete. Such delays can be problematic because for most young people the consequences that follow closely after the offending conduct prove to be much more meaningful.

As under the Young Offenders Act, the proposed youth criminal justice act would allow prosecutors to seek to have an adult sentence imposed if a youth 14 or older were found guilty of an indictable offence. The youth criminal justice act maintains the category of presumptive offences in the Young Offenders Act, but extends the presumption to youths 14 or 17 and to serious repeat violence offences.

A youth charged with a presumptive offence has an opportunity to demonstrate to the youth court judge that the presumption should not apply. In addition, under the proposed youth criminal justice act, provincial prosecutors would have the discretion to waive the presumption in an individual case, in which case the judge must impose a youth sentence.

Under the Young Offenders Act the crown must make an application to waive the presumption and the decision rests with the judge. The provincial attorney general could also issue guidelines to prosecutors respecting the waiver of the presumption. Finally, through an order in council a province could raise the age of the application of the presumption from 14 to 15 or 16.

The bill eliminates the transfer to adult court and provides that all proceedings against a youth take place in youth court, where age appropriate due process protections apply, as I have already indicated. Hearings to determine whether a youth sentence or an adult sentence should be imposed would be held only after the youth has been found guilty. Therefore, the youth court judge would make the decision whether to impose a youth or adult sentence after all the evidence regarding the circumstances of the offence and the offender were put before the court.

This bill is a good bill. We look forward to hearing the comments today and moving forward with this legislation. The bill was before the House in the previous parliament and it is now time to get on with it. Canadians are demanding it and we should respond to their demands.