John Maloney

[Blood Samples Act, March 20th, 2001]

Mr. Speaker, the bill proposed by the member for Fraser Valley raises a number of important issues that must be thoroughly examined. There is no question that he speaks with passion on this issue and I commend him for that.

Bill C-217 provides that a justice may issue a warrant authorizing a peace officer to require a qualified medical practitioner to take or cause to be taken by a qualified technician samples of blood from a person in order to determine whether the person carries hepatitis B virus or the hepatitis C virus or the human autoimmune deficiency virus, which is commonly known as HIV, if the justice is satisfied that there are reasonable grounds to do so. These reasonable grounds are subsequently enumerated in the proposed bill.

At first blush, the bill appeals to our desire to help those on the front lines, those individuals who in their daily work confront the possibility of putting their health at risk. We are speaking here of medical practitioners, health care professionals, firefighters and police officers to name a few.

The Minister of Health appreciates the work that has been done by emergency responders in Canada, as we all do. They are an essential component of the Canadian health care system. Health Canada has collaborated with emergency responders on many occasions, leading to the development of a national consensus on guidelines for the establishment of a post-exposure notification protocol for emergency responders.

Those who work on the front lines as emergency responders can be exposed to blood and other bodily fluids in the course of their work. Of concern in this proposed piece of legislation are those injuries that could result in exposure to blood-borne pathogens, namely HIV, hepatitis B and hepatitis C. It must be pointed out that exposure to the blood or bodily fluids of a person infected with HIV, HBV or HCV does not necessarily result in transmission of the virus.

In order to properly prevent these exposures and to respond appropriately when exposure does occur, emergency response organizations need an overall occupational health protocol that includes immunization against hepatitis B, personal protective equipment such as gloves, and safe work practices. If possible exposure does occur, emergency responders need to be educated because of the protocols on how to obtain immediate assessment and follow-up.

Bill C-217, the blood samples act, would authorize the drawing of blood samples from individuals who may have been accidentally or intentionally exposed—frontline service emergency providers or a good Samaritan—to hepatitis B, hepatitis C or HIV.

After a suspected exposure, an emergency service provider would be permitted to apply to a justice for a warrant. This warrant would authorize a medical practitioner or technician to take a blood sample from the patient in question, test for the aforementioned diseases and provide test results to the patient and to the emergency service provider.

Refusal to submit to a blood test could result in a prison term of up to six months. While we recognize that emergency service providers must act promptly to counteract the negative effects of exposure to serious diseases, it is important to note that previous requests for such testing have been rejected by the courts.

Preventive measures should be taken within hours of exposure. According to Health Canada guidelines published in the Canada communicable diseases report, the option to administer post-exposure prophylaxis should be established within a few hours. It is unlikely that the legal and medical procedures necessary to draw an authorized blood sample, to test it and distribute its results could be accomplished within this brief time frame.

While mandatory blood testing of sources in cases of genuine exposure might assist in making more informed decisions regarding the use of post-exposure medications, there would also be the potential for endangering the health, especially the mental health, of the victim by breaking the rules of patient confidentiality.

The guidelines referred to above and established by Health Canada, in conjunction with firefighters, police and ambulance workers in 1995, demonstrate the concrete actions taken to address the risks, and by consequence have already anticipated the objectives of the bill. These guidelines, which ensure that emergency responders will be notified quickly regarding exposures obtained in their line of work, have been implemented by a number of parliaments, specifically Alberta, Ontario, British Columbia, Saskatchewan and the Northwest Territories, and in other regions and hospitals in other jurisdictions.

In 1997 a second protocol outlining assessment, testing and treatment procedures to be used to promote the well-being of health care workers, including firefighters, police and ambulance workers, was released by Health Canada. By following the second protocol, emergency responders will receive up to date care directed toward reducing the effects of an exposure.

The guidelines recommended by Health Canada for emergency responders reflect the same standard of care given to all other health care workers, including nurses and physicians. The guidelines recommend testing the source in such cases but always with consent. By following Health Canada's notification protocols, emergency responders can be assured of timely, rational and effective assessment and treatment.

The issue of blood testing has been the subject of extensive study in the criminal field in the context of sexual assault. Medical experts advise that the only way a victim of sexual assault can be sure that he or she has not been infected is by undergoing hepatitis B or C or HIV antibody testing, according to recommended procedures. A random test is simply not determinative of the health of an individual.

On its face the bill does not apply solely in cases where an offence is alleged to have been committed, but rather in any case where there has been an exchange of bodily fluids. Thus a warrant to obtain a bodily sample is sought without any offence being committed. There is therefore no nexus for criminal law. This is most troubling.

The bill also raises important concerns relating to privacy, searches and seizures and human rights guaranteed by the Canadian Charter of Rights and Freedoms. The taking of bodily substances always raises significant constitutional issues and charter issues. The taking of bodily substances without any charges being laid or before conviction raises considerable constitutional questions under section 7, life, liberty and security of the person, and section 8, unreasonable search and seizure.

The issue of blood testing clearly belongs in the domain of health. The Department of Justice is actively working with other departments, in particular Health Canada, to ensure that there is more done to provide support and assistance to those who may be concerned about the risk of hepatitis B or C or HIV infection.

In conclusion, I support measures to protect our emergency workers, firefighters, police officers and good Samaritans. However, it is questionable whether Bill C-217 does this.

[Supreme Court Act, March 19th, 2001]

Mr. Speaker, I rise today on behalf of the Minister of Justice to address Bill C-234, an act to amend the Supreme Court Act, introduced by the hon. member for Ancaster—Dundas—Flamborough—Aldershot.

It is healthy in a democratic country such as ours to have debate about the respective roles of the judiciary and parliament and the dialogue between those institutions. I thank the member for giving us the opportunity to debate the issue before the House of Commons.

After consideration of Bill C-234 and the effect of the proposed amendments on judicial independence, it would be impossible for the minister to support the bill. Allow me to explain.

Bill C-234 proposes two amendments to the Supreme Court Act. Both amendments would apply only in constitutional cases. The first amendment, section 52.1, would require the supreme court to consider parliamentary and other extrinsic materials that deal with the purpose or intended effect of a provision or act when the constitutional validity of a statutory provision is at issue. The amendment lists commission of inquiry or law commission reports, debates of the House of Commons or Senate, and debates of the provincial legislatures as examples of the types of materials the court would consider.

The proposed amendment at best simply codifies an approach that has been adopted by the Supreme Court of Canada since at least the Anti-Inflation Act reference of 1976. In that case, Mr. Justice Ritchie wrote that it was not only permissible but essential to consider the material the legislature had before it when the statute was enacted. It is expected that parties before the court will bring evidence of the purpose and intent of the impugned legislation to the court's attention. Such materials indeed form an integral part of the government's arguments under section 1 of the Canadian Charter of Rights and Freedoms.

However, there is a danger that the provision could be more broadly interpreted as requiring the court to independently research any such evidentiary materials that have not been brought forward by the parties. Such an application of the provision would significantly increase the court's already heavy workload and could result in possible delays in the administration of justice.

Furthermore, the reading of the proposed section would run contrary to a basic tenet of our common law and adversarial system: that it is for the parties alone to decide the issues and the evidence that will be brought before the court. As a result, the Minister of Justice is unable to support the proposed introduction of section 52.1.

I now turn to the second proposed amendment in Bill C-234 which, in only a couple of sentences, would create uncertainty in the law and raise serious questions about equal access to the law.

The proposed amendment would make only unanimous supreme court decisions on constitutional matters binding on all Canadians. Where the decision was not unanimous the judgment of the court would be deemed to be only applicable to the case being heard. In other words, the decision would not be considered a precedent in relation to other circumstances in which the same constitutional issue arose.

The Minister of Justice is equally unable to support the proposed amendment. The amendment is clearly contrary to the doctrine of precedent that underlies Canadian constitutional law and that supports the need for certainty in the law. Pursuant to this doctrine, the decisions of a court are binding on courts lower in the judicial hierarchy regardless of whether the decisions are unanimous or by majority.

Not only Canada but all common law countries have accepted the doctrine of precedent which enables parties to rely on a court judgment with the knowledge that people in like circumstances will be treated alike. Adoption of the proposed amendment would result in confusion, uncertainty and increased litigation within the Canadian legal system as parties, including governments, would be required to repeatedly contest or defend the constitutional validity of legislation whenever a unanimous decision was not reached.

The enactment of section 52.2 could have the further consequence of creating an unequal application of laws. Under the proposed provision, the circumstances of individuals or organizations other than the parties before the court would not be covered by a majority decision and further litigation would be required for redress. However not all those affected by the challenge legislation have the necessary means to assert their rights in court and consequently would not enjoy the same benefits of the law. The minister cannot support such unequal application of the law.

The Minister of Justice is further compelled to oppose both of the proposed amendments to the supreme court act as they will quite likely be construed as violating the constitutional principle of judicial independence.

The amendments impinge directly on the decision making process. Judicial independence is a fundamental principle under the Canadian constitution. Its dominant requirement is that judges be completely separate in authority and function from all other participants in the judicial system, including the legislature.

One of the three essential elements of judicial independence is the constitutional independence of the court with respect to issues bearing directly on its judicial functions.

The process by the which the court reaches its decisions is clearly an integral aspect of its judicial functions. That process includes the evidence the court is required to take into consideration, as raised by the proposed section 52.1. Section 52.2 of the hon. member's bill could be seen to even more directly infringe upon judicial independence if it has the purpose or effect of forcing courts to make unanimous decisions.

The provision would contravene the individual as well as the institutional independence of judges to make their decisions impartially and free of extraneous influence. Such interference with judicial independence could only serve to erode public confidence in Canada's judiciary.

Together the two provisions raise serious concerns regarding both their constitutionality and their legal efficacy. In light of these considerations the Minister of Justice is unable to support the bill.

[Child Poverty, March 16th, 2001]

Mr. Speaker, despite much effort, there are still too many Canadian children living in poverty.

This past November, Campaign 2000 released its ninth annual report card on child poverty in Canada. The report is positive about the role social policy can play in addressing child poverty issues. This includes recent government initiatives, such as increases to Canada's child tax benefit, extension of employment insurance parental benefits, agreement on early childhood development and enhanced tax measures for children with disabilities.

The report also indicated improvements were evident over the previous two years. Societal improvements include the national child benefit, which has injected millions of dollars back into low income family budgets and has enhanced programs and services for these families.

The condition of children in poverty will improve because of strong government initiatives. We must sustain these efforts to give children the good start they deserve. Children are a priority of the government.

[Criminal Code, March 13th, 2001]

Madam Speaker, sustaining and protecting the environment as well as human life are priorities for the Department of National Defence.

The Proof and Experimental Test Establishment at Nicolet, Quebec, has provided technical services and carried out munitions proof and engineering tests for the Department of National Defence since 1952.

The ammunition tested at Lac St-Pierre is used by Canadian forces members on military operations all over the world as well as in their day to day training.

The main objective of the munitions testing program is to ensure the safety of the men and women in the Canadian forces who use the ammunition. We must have absolute confidence in the safety and suitability of our munitions. Firing a small sample from each new lot of ammunition that is produced is the only way to ensure the safety and suitability of the ammunition.

Lac St-Pierre was initially selected because of its proximity to several munitions factories. This rationale still holds. Testing at Lac St-Pierre minimizes the costs of transporting the ammunition as well as the public safety hazard associated with the transportation of live ammunition.

The Department of National Defence takes its public safety responsibilities very seriously. It has always had an open relationship with local residents, working with them to satisfy their concerns.

We in the department also have a close working relationship with Environment Canada and provincial officials, and we ensure that all our activities comply with provincial standards and regulations.

Since the early 1990s, we have cut test firings in half and reduced noise levels. Almost all firings are now done through mufflers and all ammunition is now fired into a mound of earth from which we can recover the ammunition. We no longer fire into Lac St-Pierre itself.

We have always undertaken measures to clean up projectiles. Every spring and summer the shoreline of Lac St-Pierre is examined for projectiles that have been freed from the lake bed.

Additionally, in 1999 DND began an environmental study of the sediments of Lac St-Pierre in co-operation with Environment Canada. The study will be completed in the fall of 2001. Preliminary results indicate that the ordnance on the lake bed has not caused any environmental damage. DND is also examining a proposal to begin a more thorough cleanup of projectiles from the lake. However, this is a long term project with no quick fix.

There are very real environmental challenges and difficulties involved in cleaning up unexploded munitions in water. We are actively pursuing potential solutions with all stakeholders.

As one of the federal government's largest landholders, DND remains strongly committed to minimizing the impact of its activities and operations on the environment.

[Criminal Code, March 13th, 2001]

Madam Speaker, I am pleased to participate in the second reading debate of Bill C-247, an act to amend the criminal code, forfeiture of property relating to child pornography crimes. I share the hon. member's concern about child pornography and I congratulate him for introducing the bill.

I can assure the hon. member that the concern about protecting children from predators is also of primary concern to the government. The Speech from the Throne was clear on that point. In the Speech from the Throne our government stated its full intention to “act to safeguard children from crimes, including criminals on the Internet” and to “take steps to ensure that our laws protect children from those who prey on their vulnerability”.

We all recognize that our children are the most vulnerable members of our society and we must do all we can to protect them from harm. No one will deny that child pornography seriously harms children. It does so in at least two ways. It creates a permanent record of the sexual abuse of children and it perpetuates the message that children are appropriate sexual objects. Indeed, they are not.

Child pornography was specifically prohibited by an amendment to the criminal code enacted in 1993. This amendment, which is now 163.1 of the criminal code, creates new offences for the production, importation, distribution, sale, possession for purposes of sale or distribution and simple possession of child pornography. All these offences carry a greater penalty than the offences prohibiting obscene materials involving adults.

These criminal code provisions against child pornography were enacted to respond to the prevailing practices at the time. These practices were still primarily paper oriented and involved mechanical production and physical distribution practices.

Although the current offences have been successfully applied to electronic practices relating to child pornography, no one in 1993 anticipated the technological advances that were experienced in the last five years. No one anticipated how quickly new technologies would be embraced by such a large portion of the population, particularly young people. In particular, it was not anticipated at the time that computer systems, including the Internet, would become the instruments of choice for trading child pornography.

The Internet has made it easier to communicate valuable information and carry on discussions on all kinds of subjects with people who share similar interests. Unfortunately, it has made it easier to disseminate and collect images of child pornography.

Perhaps the time has come to take a close look at the child pornography provisions in order to determine whether they still apply to current practices.

The purpose of Bill C-247, like the purpose of Bill C-321 introduced by the hon. member for Lethbridge in the previous parliament, is to create an additional deterrent to the commission of a child pornography offence. The bill would add a component to the sentence currently available under the criminal code and deprive the person convicted of the offence of all tools and instruments that were used to commit the offence. The bill would provide for the forfeiture of these instruments to the crown.

I note the hon. member has added to the bill an element that was lacking in Bill C-321. It now specifies that an order cannot be made in respect to a thing that is not the property of a person who is not a party to the offence. It also specifically excludes the forfeiture of communications facilities and equipment.

I recognize that these changes make the bill more sound. However I have some questions on the working of the provisions as drafted.

For instance, while the bill provides that the judge should not order forfeiture when the person guilty of the offence is not the owner of the thing, it does not provide for the manner in which the owner would have his or her right to the property recognized.

I commend the hon. member for introducing the bill. It is a step in the right direction in our fight against child pornography. I support the principle of the bill. However more must be done if we want to adequately protect our children against sexual exploitation.

The Minister of Justice has a bill currently on notice. The hon. member might be pleasantly surprised when he sees it after introduction.

[Divorce Act, February 23rd, 2001]

Madam Speaker, as presented to the House, Bill C-237 proposes to amend the Divorce Act by creating new section 15.4, which would provide that courts grant the custody of the child of the marriage to both spouses jointly, unless it is the opinion of the court that to do so would not be in the best interests of the child.

Bill C-237 would amend existing subsections 16(1) and 16(4) of the act that currently authorize courts to grant custody of or access to any or all children of the marriage to any one or more persons, by deleting the references to custody so that these subsections would pertain only to access orders. In effect, the bill creates a rebuttable legal presumption of joint custody.

The Government of Canada announced a strategy for family law reform with respect to child custody and access in May 1999 when the Minister of Justice tabled the government's “Strategy for Reform”. This strategy includes fundamental principles for reform and emphasizes the need for a comprehensive government response to address those important issues that have an impact on children's lives. In light of this commitment to a comprehensive strategy, the Minister of Justice is not in a position to support Bill C-237.

The effect of Bill C-237 is to create a legal presumption of joint custody. There are four fundamental problems with this legal presumption.

First, it is inconsistent with the government's strategy for reform which rejects the idea that a one size fits all approach may be applied to all families experiencing separation and divorce.

Second, it is inconsistent with the recommendations of the special joint committee's report “For the Sake of the Children”.

Third, the bill is inconsistent with the government's commitment to work closely with the provinces and territories to develop co-ordinated reforms that respect the constitutional division of powers and responsibilities.

Finally, the bill potentially creates confusion by imposing a legal presumption of joint custody without defining what is meant by that term.

I have noted that Bill C-237 is inconsistent with the government's strategy for reform of the family law system dealing with child custody and access. Let me explain. The reform strategy was announced by the Minister of Justice in May 1999 when she tabled the government's response to the report of the Special Joint Committee on Child Custody and Access, “For the Sake of the Children”.

The government's plan for identifying reforms, and in particular, reforms respecting amendments to the Divorce Act, is based on the primary principle that the individual needs, best interests and well-being of the children are paramount. The government's response notes that the Government of Canada has developed a strategy that is rooted in four principles.

The first principle is the desire to promote child centred reforms that focus on minimizing the negative impact of divorce on children. This strategy identifies the need to reform the legal rules, principles and processes that will better structure the decision making process in a child centred way and shift the focus of the family law system from parental rights to parental responsibility.

The second principle is the government's commitment to work closely with the provinces and territories to pursue co-ordinated, multijurisdictional efforts while respecting the division of powers and responsibilities in this area of shared constitutional jurisdiction.

The third principle refers to the critical need to explore a broad range of measures to support families going through separation and divorce, because statutory amendments alone cannot address many of the problems that are, in reality, only partly legal in nature.

The fourth principle is of the utmost importance for the matters we are currently discussing. It is the recognition that each family has unique characteristics and experiences divorce and separation much differently. It is exactly the reason why we do not want to apply a one size fits all approach such as that suggested by Bill C-237 to all Canadian families experiencing divorce.

Conflict levels of separating parents vary widely, as do individual children's needs. As well, children undergo developmental change over time and adjustments may be needed to allow for changing relationships and circumstances. The Government of Canada's reform strategy recognizes that no one model of post-separation parenting will be ideal for all children. For this reason, the minister cannot support the one size fits all approach that Bill C-237 attempts to introduce into the Divorce Act with the creation of a presumption of joint custody.

As indicated, the proposed bill is inconsistent with the recommendations of the special joint committee's report “For the Sake of the Children”. The special joint committee heard many arguments in favour of various different legal presumptions such as the one proposed by Bill C-237 when it held public hearings across the country.

The special joint committee held 55 meetings and heard from many witnesses across the country, including individual parents and children, women's groups, fathers' organizations, lawyers, judges, social workers, psychologists and physicians. The hearings highlighted the difficult, emotional and contentious nature of custody and access issues and confirmed that the very different and often conflicting views continue to be held, both about the problems and about the reforms that are required.

The special joint committee's report entitled “For the Sake of the Children” acknowledged that one of the most frequent requests at these hearings was that the Divorce Act be amended to add a legal presumption. However, the special joint committee decided not to recommend a legal presumption. Instead, the report states on page 42:

Presumptions in favour of joint custody or the primary caregiver have been adopted in a number of US jurisdictions, but in some cases legislatures have subsequently withdrawn them after finding that they were not having the intended desirable effects. Presumptions that any one form of parenting arrangement is going to be in the best interests of all children could obscure the significant differences between families...Presumptions can also have a negative effect of compelling families who might otherwise have been able to make constructive, amicable arrangements to apply to a court, if they want to avoid the application of a presumptive form of parenting arrangements.

The special committee carefully considered and rejected the use of legal presumption, such as the one that Bill C-237 attempts to introduce into the Divorce Act. This is another reason why Bill-237 should not be supported.

The government is committed to working closely with the provinces and territories. I am concerned that Bill-237 is inconsistent with the government's commitment to collaboration and partnerships in this area of law. This is one of the four fundamental principles of the government strategy for reform, to work closely with the provinces and territories to pursue a co-ordinated, multi-jurisdictional effort while respecting the division of powers and responsibilities in the area of shared constitutional jurisdiction.

The federal and provincial governments have specific constitutional powers with respect to family law, and the territorial governments have specific responsibilities under their original acts. The federal Divorce Act generally applies where parents are divorcing and need to settle issues such as child custody, access and support. Provincial and territorial laws apply when unmarried parents separate or married parents separate and do not pursue a divorce, as well as to some issues involving divorce proceedings.

Currently the federal Divorce Act and provincial and territorial legislation all have the same general legal principles to govern custody and access disputes. Bill C-237 would impose a legislative presumption that is not found in any of the provincial or territorial statutes. If the federal law is reformed without corresponding changes to the provincial or territorial laws, we risk creating confusion and uncertainty leading to more conflict between parents and increasing litigation. This would only aggravate the difficulties experienced by children.

The bill amending the Divorce Act could also have serious implications on provincial and territorial court procedures and court services. The provinces and territories have constitutional power over the administration of justice. This includes responsibilities for establishing the rules of civil procedure and administering court services within their jurisdiction, including procedures respecting Divorce Act matters.

Arguably, specialized court services and programs would be necessary to assist families who had a joint custody order imposed on them by the courts without their agreement. This could be the result of the proposed Bill C-237 presumption of joint custody. Members of parliament from every party should be concerned about supporting a bill that could have this kind of potential impact on the provinces and territories while seeking their prior co-operation and commitment.

It is critical to remind ourselves that developing and implementing family law reforms is a complex task. The challenge in reforming the Divorce Act is to identify terminology that is consistent with a child centred approach and is carefully defined so that there is a clear and accepted understanding and use by both the courts and the public. I believe that the proposed Bill C-237 does not meet this challenge.

The bill creates a presumption of joint custody without clarifying what this means. Does joint legal custody mean shared decision making? If so, can we force parents to make joint decisions concerning their children when they are unwilling or unable to communicate with each other? This would be particularly dangerous in a high conflict situation. How can this be in the best interests of the child?

It is also possible that the bill is imposing a joint physical custody arrangement that would require each of the parents to be responsible for the daily care of the children for an equal amount of time. This may not be appropriate for many families. I believe that children's living arrangements should be determined according to what is in their best interests as opposed to ensuring an equal division of time between the parents.

Separation and divorce are difficult for children. The family law system must be responsive to their needs. The bill could aggravate an already difficult situation for families. It would impose a “one size fits all” approach. That is inconsistent with the government's strategy for reform and that was rejected by the special joint committee. It could create significant demands on provincial and territorial services without seeking their prior co-operation and commitment. It also introduces a legal presumption without providing clarification of what it means.

I know that the government has spent a considerable amount of time working closely with the provinces and territories to develop well considered reform proposals. To this end a number of background research papers have been prepared and several more are underway. Work is also underway evaluating the impact of legislative reforms recently undertaken in other countries. Public consultations will be taking place this year on specific reform proposals.

Developing and implementing family law reform is a complex task. Although we need to work quickly, we also need to take the time to insure that we get it right.

[Organized Crime, February 16th, 2001]

Mr. Speaker, as I already mentioned to the member for Yukon, in recent months we have consulted with our counterparts in the various provinces and with law enforcement agencies to discuss measures to combat organized crime.

We anticipate that measures will be introduced shortly to give our police and our prosecutors the necessary tools to fight this phenomenon.

[Organized Crime, February 16th, 2001]

Mr. Speaker, the government is very pleased that section 467.1 of the criminal code is being used by prosecutors with success. The section of the code established the offence of participation in a criminal organization and was introduced by the government.

The Minister of Justice is continuing to work to break the back of organized crime. We have undertaken talks with our provincial partners and with law enforcement agencies, and we anticipate introducing new legislation which will fight organized crime.

[Gun Control, February 16th, 2001]

Mr. Speaker, we have not set up a new police force. The enforcement of the gun regulations will be done by the regular RCMP and provincial police authorities.

[Youth Criminal Justice Act, February 14th, 2001]

Mr. Speaker, the member opposite is critical of the period of supervision following a custodial sentence. Does he not feel that this is eminently more superior than the present system where, at the end of an individual's period of custody, the door is open and out he walks? Does he not feel that a period of supervision will assist the aims of rehabilitation and reintegration, especially when that period is not statutory and is set by the sentencing judge?