Peter Mancini

[Cultural Grants Acknowledgement Act, November 18th, 1997]

I have heard many things on CBC that have offended me. I have heard many things in the private broadcasting sector that offend me more. I note that in this bill there is no requirement for the private sector to indicate the influence it may have on cultural events that take place. There is no accountability there.

I get the sense we want to go back to the way it was in the time of Caterina de' Medici when certain privileged groups were patrons of the arts. In that case individuals with gifts and abilities were supported by private patrons instead of the public. Then an individual may have used his creativity to write love songs for his patron's mistress. I don't know.

We have come a long way. We have come to a point where we recognize that culture and art are a part of the fabric of this nation. We have come to a point where we recognize the right of artistic expression whether we agree with that expression or not.

My colleague from Dartmouth explained it like this. We go to a public event to be educated, sometimes to be offended. We do not go to be offended but sometimes we are. We go to be stirred. We go to be enlightened. We go to create the kind of debate we are having here today.

If there were no public funding for the films mentioned, for some of the plays that have been written in this country, for some of the music that some colleagues or I might find offensive, then we would not have this debate. We would hear endless reams of Lawrence Welk playing on some radio station that could be the most general and least offensive type of music that anyone could listen to.

The reality is artists need to be supported in their creative efforts. They do not need to worry that because someone does not like their work, their funding is going to be cut, and that is what this is really about. It is about saying that we find this film about incest offensive, we find this music offensive and for that reason we are going to use the fact that some public money was used in this to end it. That means we will go back to private funding.

We listen to the sitcoms that come across the border every day because nobody asks the sponsors how much money they have spent, and I think that is the intent of this bill. I speak in favour of the freedom of the artist to express himself or herself.

[Cultural Grants Acknowledgement Act, November 18th, 1997]

Mr. Speaker, I, like my colleague who spoke before me, had not planned to speak on this private member's bill. I think my colleague who has just spoken was a little bit perturbed by the comments of the hon. member for Dartmouth. Well, maybe not perturbed but perhaps concerned and it generated in him the desire to address some of the comments that were made by her and indeed some of the comments in the bill itself. Having heard the debate as he did, I too am moved to speak. The comments of my hon. colleague just prior to my rising made me more determined to speak. They give the indication more than anything else about what the intention of this bill really is.

The bill is a little about accountability and a little about taxpayers' dollars but it is mostly about art that offends certain individuals. It is an attempt to use dollars—

[Remembrance Day, November 6th, 1997]

Madam Speaker, on behalf of the New Democratic Party across Canada, my colleagues and I join with all members of the House in recognizing this coming Tuesday as Remembrance Day.

We believe that we would do well to pause and reflect on its meaning. I will do so myself. I had four uncles who served in the second world war, three of whom were prisoners of war. They do not discuss those days with me very much but I know that they have paid a great price for the freedom that I have to be here today.

We should also remember and honour all those who have made the supreme sacrifice and who willingly gave everything for the cause of peace, and for the cause of democracy.

We must remember the sacrifices and commitment of all those who pursued peace on our behalf in all of the wars, conflicts and peacekeeping missions around the globe.

Also we must not forget the contribution of those Canadians who served in the Mackenzie-Papineau Battalion in the Spanish civil war and the members of the merchant marine.

I take this opportunity to remember someone familiar to this House who worked tirelessly for veterans and who showed, perhaps, what we can do, a Canadian who devoted much of his life to securing benefits for those gentlemen and ladies who served in the war and their families. That is the late Stanley Knowles. He was a tireless champion on behalf of our veterans and achieved much on their behalf.

We believe that it is part of our obligation to try and build the kind of world for which our veterans gave their lives. We believe this is a time for us to renew our commitment and our efforts in the pursuit of peace and democracy around the globe. We hope we will find a way to make life better for those who suffered and continue to suffer as a result of war.

We are honoured to join in this moment of recognition and remembrance for those who died and for those who served and are still with us. In the tradition of Remembrance Day, we say from our hearts, we will remember them. Their spirits watch us in this House and watch how we deal with the legacy left to us.

[Parenting Arrangements, November 5th, 1997]

Mr. Speaker, I would have no objection to the federal government paying the way, in whatever province.

[Parenting Arrangements, November 5th, 1997]

Mr. Speaker, perhaps my English is not as good as it could have been in delivering the previous answer.

What is the role I see for the federal government. I will use as an example my own province. Obviously the parties have the option of separating and dealing with provincial jurisdiction later on, or immediately the option of divorce and dealing with federal jurisdiction.

In provinces that do not have the types of mediation services or programs alluded to by my colleague from Quebec, and if the committee was to determine that there ought to be federal funding in place for mediation at the divorce level which is a federal jurisdiction, then certain individuals in a province where there may not be provincial mediation available could avail themselves immediately of the Divorce Act as opposed to the provincial statutes under which they might otherwise operate. They could avail themselves of what might be available and provided at the federal level in the supreme courts of the provinces with federal funding.

That would be the leadership role I would see in child custody and access cases.

[Parenting Arrangements, November 5th, 1997]

Mr. Speaker, I would like to answer the hon. member's question in French, but my French is not good enough.

So I am forced to answer in English. I certainly would concur with my colleague that the model he cites which is being used in the province of Quebec is the kind of thing that I certainly would be advocating for the province of Nova Scotia. In fact I should advise him that the legal aid system under which I worked took some of our own tight budget and directed it toward a pilot mediation program to attempt to indicate to the provincial government the need for this kind of program.

Unfortunately the program is not in place in the way that we would like in the province. I would see an opportunity at the federal level. If this kind of program could be enacted as divorce mediation at the federal level, the different provinces might then see the benefit in this kind of a program and follow the federal lead.

I certainly commend the province of Quebec in taking this type of action but I would not at this point indicate that the federal government ought to withdraw completely. I think it has a role to play, as a leader, in those provinces that might not be as forward thinking as the province of my hon. colleague.

[Parenting Arrangements, November 5th, 1997]

Mr. Speaker, it is with pleasure that I rise to speak to the issue before the House today. It is one that I have some particular interest in.

Hon. members indicated in their earlier comments the experience they have had. My own experience in this area goes back as a legal aid lawyer for some 12 years, dealing with people in society who do not perhaps have the financial ability in many cases to afford social workers or counsellors and who find themselves locked into litigation of the courts and litigating over the custody of and access to their children.

It is no argument that family law lawyers who deal with these problems deal with one of the most difficult and fractious areas of law in the country. It is no argument that social workers who deal in this area of the law find themselves confronted on a daily basis with very difficult decisions. It is no exaggeration to say law enforcement agencies that are forced in some cases to enforce court orders dealing with custody and access find themselves in very difficult situations.

I know because I have seen the children put in police cars when one parent demands to exercise access. I have also seen children tortured and torn between two parents saying on one hand “I want to be with this parent” to please the custodial parent and on the other hand “I want to be with this parent” to please the access parent.

It is clear in the area of divorce and family law that we are not dealing in a very sensible and certainly not in a very effective way with the needs of the children who find themselves caught in that arrangement.

At the end of the day there has to be a better way to deal with family breakup. I am pleased to support the structuring of this committee. I welcome its views. It can perform a very real service for all the people I have mentioned who work in family law services and in the family courts by helping us come to grips with what should not be an adversarial process but a conciliation process dealing with children.

Before I was a member of Parliament, as a lawyer and a private citizen I submitted a report to the then minister of justice in the last parliament which sought to reform the Divorce Act. I dealt with the very issues this committee will be examining, whether or not there ought to be a presumption of joint custody, whether or not there ought to be other presumptions in terms of determining which parent has custody.

When we look at the Divorce Act as it currently stands, unfortunately in many ways it encourages litigation and takes us away from a reconciliation process or a mediation process. The framers of the act did not intend this but once we take the family and put it before the courts in a litigious manner, in an adversarial manner, then right off the bat we find ourselves acting in ways that might be in the best interests of clients or might be in the spirit of the legislation, but are not in the spirit of the family.

Just as an example, section 16 of the Divorce Act allows for an interim order for custody. As every family lawyer knows, the courts have developed over the years many tests to determine which parent ought to be the custodial parent. I can go back to the parents patria jurisdiction of the court, the tender years doctrine, which was used by the courts for many years to determine in most cases that the mother ought to be the custodial parent of children who were of tender years. The courts then revised that and dealt with the status quo doctrine.

Of course the overriding principle is always the best interests of the child but it is the difficulty in determining that which the courts have to grapple with. It is with that difficulty that these tests have been developed.

One of the predominant tests is of course the status quo doctrine, which is that the parent who has custody of the children and provides a good environment for them immediately after the separation ought to be the parent who has custody. It is not good for the children to have constant upheaval.

As sensible as that test may be, when we put it into the litigation context, it encourages family law lawyers to make an application for interim custody right off the bat. They know that in many cases the first one at the bar takes all. If the lawyer is successful on the interim application, with the courts being overburdened as they are, the actual litigation of the divorce process and the custody hearing may take four, five, six or eight months, which automatically gives one parent the advantage. However the child does not necessarily have the advantage.

When we look at it in that adversarial context, that is the kind of thing which the act encourages.

For families that have sufficient means, and the justice minister alluded to some families who are able in many situations to work out their own custody and access arrangements, many parents can. Many poor parents can because they put the needs of the children first and allow themselves to work within that framework. However there may be more success among wealthier people because of course they can avail themselves of mediation services which in many provinces are currently privately run and run for profit.

Obviously there is a need to take this out of the litigation process and move it into a more conciliatory process. As I have indicated, that is one section of the Divorce Act which encourages litigation.

While there is a presumption of joint custody or access, the act itself looks at other factors. It says that the court ought not to look at the past conduct of a parent in determining which parent ought to have custody or access. Yet we know that many judges in the litigation process are influenced by many things. While the court says we ought not to look at past conduct unless it is in relation to the children, if we are in a win or lose situation, it is not unusual for litigation lawyers in a family law practice to bring up events from the past which have no impact on raising the children but which may appeal to a particular judge's sense of what is morally correct and what is not.

The act itself in its current form may encourage litigation which is not always in the best interests of the child and certainly does not go the distance in helping to determine a better mode of dealing with the children who are the subject of divorce proceedings.

The tests that I have indicated filter down into provincial legislation. My hon. colleague in the Bloc talked about the jurisdictional problems. Those jurisdictional problems are there. There is no question that upon separation, the family finds itself in family court. Upon divorce, they find themselves in the federal or supreme courts. Therefore what has been determined by a lower court is not necessarily binding in the federal court.

It is extremely difficult. Those of us who have practised family law will know the absolute incredulity of our clients when we tell them “I know we have litigated all of this in family court. Now you are proceeding to divorce and yes you have a custody order but it is not binding and it reopens the door”. So the jurisdictional problem is one I think this committee could look at in a very real way.

It would be remiss if I did not say, coming from a legal aid background, that unless we look at resources in the legal aid system which deals with the vast majority of family law cases in this country, unless we look at ensuring there is a solid legal aid system in place in each of the provinces, all of the rhetoric about the best interests of the children and all of the conclusions this committee can come to will be nothing more than a report placed on a shelf to be dusted off occasionally. Unless we are committed to putting in place mediation services, legal aid services, family court services, then it may well be a waste of time.

I respect the comments made by the hon. member, my colleague from the Reform Party, when he talked about the presumption of joint custody. I think most parents would agree on that until such time as there is a breakup. At that time families need someone to discuss with them the interests of their children separate and apart from maintenance payments and support payments in a way that they can understand the joint obligations as well as the joint rights that parents have.

There has been some indication that this committee will look at all of those questions. It may well lead to guidelines in the Divorce Act that can then be applied to provincial acts. I look forward to hearing and examining the situation in Quebec that has been referred to by my hon. colleague. I would support the committee and the creation of the committee. It can only benefit the children and the families of this country as they struggle in what is obviously a difficult situation.

[Veterans Affairs, November 5th, 1997]

Mr. Speaker, for over 50 years the men and women who bravely served in Canada's wartime merchant navy have been treated as second class veterans, deprived of many of the benefits accorded veterans of other services.

The Minister of Veterans Affairs when questioned on this in the House yesterday referred to Bill C-48, which he knows full well excludes members of the merchant marine from many of the benefits received by others.

Will the government show the veterans of the merchant marine the honour and respect they deserve before it is too late?

[Dna Identification Act, October 29th, 1997]

Mr. Speaker, as indicated by my colleague, we will be supporting the bill in principle but with some very serious reservations and concerns that have to be addressed.

I will comment on some of the remarks made by a previous speaker, but first I welcome the debate initiated by the solicitor general. I take him at his word that he wants to ensure a detailed analysis of the legislation because it is crucial legislation. As my colleague has already indicated, we are trying to find a balance between information that can be vitally important to both the police and prosecution services and at the same time protecting the civil rights and liberties of individuals.

I look forward to debate on the retention of DNA samples. The solicitor general indicated there were compelling arguments on both sides at the current time. My own feeling would be that retention causes real problems. I look forward to that debate in the House as well.

I would be remiss if I did not also comment on the remarks of the hon. member for Blackstrap who indicated that the bill did not go far enough for his party. I respect his opinion on that. I can see we will have lively debate when the bill comes before the committee.

He quoted some information from the United States. Again with the greatest of respect I am very cautious of that kind of information because our systems are so different in many situations.

I appreciate when he says we should err, if we must err, on the side of victims and not criminals and therefore their support to take the DNA samples at the time of the charge. I remind my colleague, as I am sure he is aware, there is no criminal until such time as a court determines guilt. At the time individual are charged they are the accused.

At that time the person we are calling the victim is the accuser. If I come before a court and say that the hon. member has done something to me, at that time I am not a victim and he is not a criminal. At that time I am the accuser and he is the accused. As I indicated we will have a lively debate on that aspect of the bill.

It has been stated that an opportunity has been presented to find that balance and I think we will. History is fraught with examples of situations where societies and communities felt they had the answer to solving crime problems and investigative tools, only to be proven down the road that scientific evidence was not as accurate as we might have hoped and that many innocent people suffered as a result of what society thought was the perfect test for guilt.

We must approach this kind of scientific information with some scepticism because it deserves to be treated carefully and critically.

Certain sections of the bill require real examination. As the solicitor general indicated, many groups made presentations to him. Many groups opposed the legislation. Among them were the Canadian Association of Sexual Assault Centres, the Elizabeth Fry Society, the National Action Committee on the Status of Women, and women's organizations like the Feminist Alliance on New Reproductive and Genetic Technologies. Several other groups felt the legislation was not necessarily the best way to use government funds. As indicated previously civil liberties associations had real concerns about the legislation.

I can point to specific examples in the legislation where I think the solicitor general and the government have gone too far, or sections that require very careful consideration and debate. Clause 7, as my colleague has indicated, provides for tremendous discretion on the part of the commissioner to provide access to information about an individual's DNA index to other groups.

The very taking of the DNA samples is questionable. Why would we do it automatically instead of perhaps suggesting that an application be made by the prosecution or by the defence? Certainly there are benefits to the accused. Why should an application not be made to the judge hearing the case who could then exercise his or her discretion accordingly with procedural safeguards for the civil liberties of the individual charged? The automatic taking of the sample is something I have some problems with.

Clause 10 which provides for further testing if there are new developments is fraught with real problems. On the storing of the substances which has been referred to, especially the storing and keeping of the substances when an individual is pardoned, when a higher court overturns a conviction, I think we must ask the question why we would keep the substances once an individual is determined to be innocent of the crime. Then the sample ought not to have been collected in the first place. Why we would continue to keep that index and the information derived from the samples is something we have to look at very carefully.

The application to young offenders and the keeping of the samples for 10 years is a portion of the legislation we have to look at very critically. As well we should look at the offences to which the taking of DNA samples will apply.

Those concerns will demand very real examination in committee. As I have indicated, the NDP will support the bill in principle at this point and will certainly support referring it to committee.

However, if I can summarize, a number of issues need to be addressed such as the indefinite period of keeping the DNA on file; the inclusion of young offenders in the act, in every single portion of the act, to be treated the same way as adults; the issue of who has access to the DNA databank and how the information may be used; the fact that the DNA may be taken even while a case is under appeal or kept while the case is under appeal; and the taking of DNA be mandatory upon conviction rather than at the discretion of the judiciary.

I cannot stress that enough. I feel very strongly about that point. I am willing to listen to other arguments and debate, but it is something we have to be very careful about.

The fact that a person can be detained for a reasonable amount of time for the taking of the samples, as opposed to a clearly defined period of time during which the samples could be taken, requires consideration. Who will be taking the samples? Will it be a member of the police force or a trained individual?

Another very real question that has to be addressed is the funding formula and the costs of establishing the DNA databank. Who will pay for it? Obviously the commissioner will be a member of the RCMP. The RCMP will have a huge influence on the way the legislation is dealt with. All those questions deserve very careful consideration.

As I have indicated I look forward to the debate. I think it will be lively. I especially look forward to the comments of the next speaker, the hon. member for Pictou—Antigonish—Guysborough. He is a former prosecutor. I am a former defence counsel. The two of us worked in the same province. We did not have the opportunity to lock horns in the courtrooms of Nova Scotia, but I look forward to our debate in committee.

[Justice, October 29th, 1997]

Mr. Speaker, yesterday the inquiry into the wrongful conviction of Guy-Paul Morin heard allegations of judicial bias. In recent months the Supreme Court of Canada has been critical of federal court judges, and a retiring supreme court justice has called for a new process for judicial appointments.

The Minister of Justice has said she is open to suggestions. Will the minister take action to restore the public's faith in our justice system by creating a special committee of the House to examine proposals to reform the judicial appointment process?