Lynn Myers

[Foreign Missions and International Organizations Act, November 21st, 2001]

Mr. Speaker, I have followed closely the debate on Bill C-35. It is an important bill and certainly one the House should take time reviewing, which is precisely what we are doing today. Its proposed amendments to the Foreign Missions and International Organizations Act aim at modernizing the privileges and immunities regime contained in the existing legislation which was passed in 1991.

These amendments will enable Canada to comply with its commitments under international treaties and to respond to recent changes in international law. In addition, the bill amends the current act in order to correct several technical difficulties that over the course of time since 1991 have been identified. Certainly we want to enable us as a House to do it properly.

I listened to the member prior to me speak. There were a number of misconceptions, some misinformation and misconstrued ideas tossed about. It was a little disheartening to have to listen to him speak and in a cheap partisan way drag into play the name of Catherine MacLean. I thought dragging in Justice Hughes' report was inappropriate as well because it really had nothing to do with what we are talking about here today.

We need to correct the record when he talked about spies and terrorists coming here to, I think his words were, rape and murder and do all kinds of things. It is outrageous. It is pathetic really, extremism to the nth degree. It really is inappropriate in this House when we are really dealing with a very substantial piece of legislation. This piece of legislation is very serious and is one that commits the government to meet its international obligations in a manner consistent with the great ideals and the great values of our country.

Those misconceptions and half truths and everything else tossed aside, we can now proceed into a serious debate about what we are doing in Canada and what the bill really means and the impact not only on this great country of ours but also, as we play out on the international scene, the obligations our great country has in terms of foreign affairs.

I also want to correct the record. I was at the justice and human rights committee meeting until almost 3 o'clock this morning. It sat late last night and into early today. We dealt with Bill C-36. Bill C-36 and Bill C-35 in no way contradict each other. That too was mentioned and it is simply not true.

The member for Portage--Lisgar indicated that we are somehow putting Canadians at risk by what we are doing. That is absolute nonsense. On the contrary, more than ever, in light of not only events prior to September 11 but after, what we are doing is making sure that our towns, villages, neighbourhoods, cities and rural areas continue to be safe and secure in a manner consistent with the great values of Canadians wherever they live in this great country of ours. That is always the objective in trying to pursue a legislative agenda that makes sense and is consistent with those values in a meaningful way. That is precisely what we are doing with Bill C-35.

Going back to the events of September 11, those events in New York and Washington reminded us that the threats to public safety are of global concern. That is an obvious statement now. The recent trend of increasing violence at international summits for example has shed light on the need for appropriate action to be taken at international meetings. We have seen that Canada is repeatedly called upon to do its share and in some cases more than its fair share, for example, the G-20 meeting this past weekend in Ottawa.

Why? Because Canada, first, has professional policing services in place and security personnel and peace officers who know what they are doing in a manner consistent with not only Canadian values but the values of the international community when it comes to hosting these international meetings.

Canada will be called upon next summer, as well, in Kananaskis, Alberta with the G-8.

We have a great history and a great tradition of being able to host these meetings in a way that enables security and safety for everyone, the participants, even the protestors, the news media and others who are there, in terms of what is taking place.

We can be justifiably proud, not only in the House but also in this great country, to know that Canada has the ability to do these kinds of measures and do them in a reasoned, proportional way that is consistent with the values of Canada but, more important, ensures the safety and security of all concerned.

As the host of the G-8 next year, as I indicated, Canada has an obligation, which we take very seriously, to take all the steps to protect our international visitors and to ensure that the meeting is done in a safe and secure manner.

I think it is fair to say that never before has the need to respond effectively to security challenges been more acute. The time is ripe to clarify and underscore our duty to fulfill our obligations to protect international visitors.

When we look at the proud tradition of the Royal Canadian Mounted Police, the provincial police services, the local police and the regional police across Canada, we can be justifiably grateful that these men and women are there doing the kind of professional job that they do to enable us to all sleep better at night and, further, to let Canada do the kind of things that are important on the international scene, which is to host meetings and be the host for people from around the world, to enable us to carry on the great commitment that Canada has in this area and, furthermore, to enable Canada to carry on the proud tradition started by many people in the past who have brought us to this point.

Bill C-35 allows us to do just that.

I would now like to address the security provisions in the bill, what they will do, how they will be developed and how they will ensure that the basic rights and freedoms guaranteed by our great charter of rights and freedoms are in fact preserved.

The amendments would provide clear statutory authority to ensure security for the proper functioning of an international event hosted in Canada thereby promoting public safety and the safety of foreign delegations attending these events.

The amendments, contrary to the speaker prior to me, were carefully drafted in light of the common law and the statutory duties that the police already have to keep the peace, to protect persons attending an international conference from harm and to protect persons engaged in lawful demonstrations from unlawful interference.

Those are sacrosanct principles that we need to ensure are in place in Canada for the benefit of all concerned. For example, I want to point out that the Security Offences Act already gives the RCMP primary responsibility to protect internationally protected persons from being the target of criminal activity.

I would also like to assure members that the primary responsibility of the RCMP does not suggest that the Royal Canadian Mounted Police will now be solely responsible for security at international events.

The amendments also accurately reflect the practical arrangements between the RCMP and the local police, either provincial, local or regional, in sharing responsibilities for security measures. That is the way the partnership works in Canada, to ensure that peace, order and good government prevails and that security and measured response are the order of the day.

As in the past, the RCMP would continue to share responsibility with the police forces of local jurisdictions and would continue to consult and co-operate with each police force to determine who will be responsible for specific activities.

That pattern will be repeated next year with the G-8 in Kananaskis. We have seen it before. We saw it in Quebec City. I want to commend those police and peace officers who did such a tremendous job at those events. Those are the kinds of security measures that will be carried on and carried forward because they work and they afford all concerned the protection that is so valuable in this kind of forum.

I want to indicate that it might be decided that a provincial police force would be responsible for keeping the peace around a perimeter and controlling access to that perimeter while the RCMP might be responsible for the protection of internationally protected persons. I give that as an example of how that kind of co-operation can take place. Each police force would make the call in its respective area of responsibility based on the kind of dialogue and pre-planning that goes into this kind of important event, pre-planning, by the way, that is already well in hand when we talk about the G-8 in Kananaskis.

The RCMP, for example, would retain the lead in ensuring that whatever police action is being contemplated will be geared toward ensuring the overall protection of international visitors and the proper functioning of the event.

With respect to the erection of a security perimeter, a fence or whatever else that might entail, I think we are all aware of the Tremblay case where the Quebec superior court held that the security fence erected at the Quebec summit was reasonable and justified and did not breach the charter of rights and freedoms. That is important because it underscores that the kind of planning and foresight which went into the security perimeter in Quebec City was in fact appropriate. More to the point, it withstood the test of the charter of rights and freedoms. That underscores the kind of good common sense that went into the planning of that particular summit.

Several years ago, in a case called Knowlton, the Supreme Court of Canada held that the establishment of a security perimeter at a hotel entrance during the official visit of the premier of the then U.S.S.R. was necessary and reasonable in light of the duty of the police to keep the peace.

Although some members of the House have described these amendments as vague, let me assure them that the terms “appropriate measures” and “reasonable in the circumstances” are well understood by the courts of the land. These are held to be those measures that the police believe they should and must do in order to ensure that an international conference can be carried out properly and safety, again in keeping with the values of Canada.

I would also like to emphasize that the security measures that these amendments authorize do not in any way restrict or infringe the rights that citizens enjoy under the charter of rights and freedoms. Those rights are guaranteed, as well they should be in a great democracy like Canada. They will be carried forward in a manner consistent with the wishes of Canadians wherever they live.

The police are and will continue to be liable for any excess use of force in managing the security at an international event. Moreover, any police measure that limits a charter right, such as freedom of expression or assembly, must be justifiable in a free and democratic society.

I mention those things because it is important to get on the record and to understand that there are certain obligations, rights and responsibilities that exist. In all cases we temper them in a tripod or three pronged lens. On the one hand, human rights. On the other hand, civil liberties. On the third side we have the whole issue of national security. These are fundamental lenses through which we look to see that all things are covered. I think it is in keeping with what we expect in our country.

I want to point out that Bill C-35 has amendments that fall into five broad categories. I think it is important to underscore these five, to get them on the record and to make sure that all members in the House present today understand the importance of what is being created here. Again, it is substantial, good legislation that is in keeping with commitments, not only in Canada but also on the international scene.

I want to point out that the amendments are needed to modernize the legislation, in order to comply with Canada's existing commitments under international treaties as well as to respond to important new developments in international law.

The exercise is simple. Canada is catching up with the new developments that are happening around the world. We are always modernizing. We are always making sure that we are in synchronization with other countries around the world, for example, by extending privileges and immunities to international inspectors employed by the Organization for the Prohibition of Chemical Weapons who come to Canada on temporary duty to carry out inspections under the chemical weapons convention. That is an example of how this will be used, how we need to bring our legislation into focus to enable us to make sure that is carried out and carried out appropriately. These amendments would enable the inspectors to import specialized technical equipment without paying customs duties.

In a broad category are those necessary to correct deficiencies in existing definition of international organizations. The existing definition covers only international organizations of a formal, institutionalized nature based on treaty, such as the United Nations and not more unconstructed intergovernmental organizations such as the G-8 or the Organization for Security and Cooperation in Europe.

Another broad example of this are those designed to provide clear statutory authority to support security measures necessary for the Canadian police to fulfill Canada's international obligations regarding the protection of persons who attend high level meetings held in Canada for international organizations.

Those needed to clarify the provision granting immunity from immigration restriction and alien registration override the Immigration Act provision that prohibits the entry to Canada of inadmissible persons but does not override the Crimes Against Humanities and War Crimes Act. That is important because it underscores Canada's commitment in this very important area in a manner keeping with all other laws and regulations that we have in this great country.

I have already addressed the housekeeping measures to correct technical inadequacies that have been identified since 1991 so I do not intend to go into those now.

We have a very proud history of ensuring the safety and security of people who attend meetings, international conferences and other events. Bill C-35 is an act that would enable us to carry on that proud tradition.

In light of the things that have happened since September 11, it is even more important to ensure that is in place. I think it is fair to say that we now live in a different environment as a result of those events. We need to move in a manner consistent with what has taken place knowing that we need to commit to our international obligations consistent with what Canada has been able to do in the past and consistent with the repeated requests by countries and organizations around the world to ensure that we carry on that great and proud tradition, something for which all members of the House and all Canadians can be very proud.

As the host of the G-8 next year, it will be important for Canada to clarify its authorities and statutes to ensure the proper functioning of the international conference again in a manner that I believe will benefit us all and make us proud.

We on this side of the House will continue to work very hard to ensure that we meet our international obligations and make the right decisions when it comes to safety and security. We will do so consistent with the Canadian Charter of Rights and Freedoms for which all Canadians are proud. We will do so by meeting our obligations under human rights and civil liberties knowing that those carrying out the security measures, the Royal Canadian Mounted Police and the police services that exist around and across Canada, will follow due process and the rule of law.

[Foreign Missions and International Organizations Act, November 21st, 2001]

Mr. Speaker, I would like to seek the unanimous consent of the House to allow me to share my time with the hon. Parliamentary Secretary to the Minister of Foreign Affairs.

[Criminal Code, November 9th, 2001]

Mr. Speaker, I am pleased to rise today to discuss and talk about Bill C-329, which proposes that section 43 of the criminal code be repealed.

I want to say that as a government we agree with what the member just said a minute ago, that is, we on this side of the House, like she articulated, consider our children to be paramount in terms of their protection, safety and security. That has certainly been the agenda of our government because, after all, they are our most precious resource, not only in our family units but for the nation as a whole.

As hon. members know, section 43 is currently the subject of a charter challenge. On July 5, 2000, the Ontario Superior Court of Justice dismissed an application brought by the Canadian Foundation for Children, Youth and the Law seeking a declaration that section 43 is unconstitutional. In its July 2000 decision the court upheld section 43 and held that this provision reflects a reasonable balance of the interests of children, parents, teachers and Canadian society in accordance with the charter. This judgment was appealed to the Ontario Court of Appeal. The appeal was heard from September 10 to 12, 2001, and judgment was reserved.

Although it would be inappropriate for me to speak in any detail about a case that is currently before the court in Ontario, I would like, however, to discuss a few important points. I think they have merit.

I would like to begin by confirming the government's commitment, as I said at the outset, to promoting and protecting the rights and interests of our children, but as the Ontario Superior Court of Justice held in its July 2000 judgment, children's rights and interests, including the issue of section 43, must be viewed in the larger context, which includes the responsibility and role of parents and the best interests of children.

If we look, for example, to the United Nations convention on the rights of the child, to which Canada, as you know, Mr. Speaker, is a party, we see that the convention provides that children's best interests shall be primarily considered in actions concerning children. It also recognizes, however, the responsibilities, rights and duties of parents to provide appropriate direction and guidance in the exercise of these rights by the child. The convention acknowledges the family as a fundamental group of society responsible for the growth and well-being of children.

The government's position in supporting section 43 reflects this balanced view of children's interests. Section 43 balances all societal interests concerning the raising of children in a healthy and safe social environment, that is, in the family, while respecting their constitutional rights.

What exactly does section 43 say? I believe that there is a general misunderstanding of the purpose and ambit of section 43. Section 43 does not condone or authorize physical abuse of children. Equally important, it does not shield parents or teachers from interference by the state or guarantee freedom of parents to discipline children in any manner they see fit.

Section 43 acts as a limited defence, for example, to the charge of assault. In this regard several key points must be emphasized. First, the section applies only to a narrowly defined group of persons, namely a parent, teacher or person acting in the place of a parent and only in respect of a pupil or child under that person's care. Second, the force must be used for the purpose of correction. A person who uses force in a fit of rage or in order to hurt a child cannot claim a section 43 defence. Third and finally, the force used must be reasonable in the circumstances. The standard or test of reasonableness is one that is well understood and often applied within the Canadian criminal justice system.

When asked to consider applying section 43 in any given case, a court typically looks at the nature of the child's behaviour or action calling for correction, the age of the child and the severity of the punishment, including any injuries suffered by the child in that circumstance. When determining whether the force used was reasonable, the standard the courts apply is the community standard of reasonableness found in Canada and not in the practices of the individual family, or the school, for that matter.

The government is defending section 43 based on its belief that this section can be interpreted and applied in a constitutional manner which balances the interests of children, parents and Canadian society. Loving, well intentioned Canadian parents who engage in normative disciplinary conduct that is undertaken in a reasonable way and takes into account the needs and best interests of children should not be criminally charged for such conduct. Absent section 43, this would be precisely the result.

The government recognizes, however, that parents should be provided with the tools necessary to help them raise their children. To this end I would note that the federal government, primarily through Health Canada, supports parental education materials, for example, that specifically advise against the use of physical punishment and support the use of alternative methods of child discipline.

We are very concerned, as are all Canadians, about instances of child abuse in our society. It is simply unacceptable. We are also concerned about how best to protect vulnerable children in Canadian society, but in Canada protecting children from abuse is done through a number of measures of which criminal law is but one important measure.

Another such measure is provincial and territorial child protection legislation, which do not permit any form of child abuse. As a result, even if charges are not laid under the criminal code, child protection authorities can still intervene under provincial or territorial legislation where parental discipline is inappropriate or excessive. That is as it should be.

The government appreciates the objective of the bill as it is presented, namely the protection of our children, again, a very valuable resource, but we disagree that the bill would achieve this objective. It should come as no surprise to anyone that section 43 raises a divergence of opinion among Canadians. It does so because it touches upon something very near and dear to our hearts, most particularly our children and how best to parent them. In our view, however, the government's balanced approach to this important issue is by far the better approach.

When we weigh that all out I think we can see that the Government of Canada in taking this view is indeed taking into account the best interests of not only our children but their parents as well, and in so doing, by extension the broader Canadian society.

[Veterans Week, November 9th, 2001]

Mr. Speaker, Veterans Week from November 5 to November 11 is a week long time of remembrance designed to honour those who served Canada in the causes of both war and peace.

This year's theme is “in the Service of Peace”, which seems especially fitting considering Canada's large role in United Nations peacekeeping efforts. Nearly 125,000 Canadians have served in peacekeeping missions over the past 53 years and as of October 2000, 113 Canadians have given their lives in the line of duty.

Events for youth have been organized such as an activity called “Postcards for Peace” in which students are encouraged to send postcards to show their support and concern for the 2,000 Canadian men and women currently participating in Operation Apollo.

Veterans Week is a week for all Canadians to come together in gratitude to our veterans and peacekeepers for the sacrifices they have made in the name of freedom and peace.

I ask members to join me in ensuring that Canadian veterans are appropriately honoured by recognizing and participating in Veterans Week.

[Criminal Code, November 8th, 2001]

Mr. Speaker, if we look at the security measures that are in place and the safety for communities, small towns, villages, cities and rural areas across Canada, it is implicit and inherent that our society is much safer as a result of gun control. This is not about confiscating guns. I resent the implication and the mythology that is portrayed by using that statement because it is incorrect. It is an urban and a rural myth.

What this is about is carving out values for Canada, values that are dependent on the safety and security for each and every one of us, and especially for young people, and about making sure our communities are safe and secure. I am not alone in saying this. As I said previously, the police association and the chiefs of police are unanimous in saying that this is a wise move. This is what Canada is all about.

[Criminal Code, November 8th, 2001]

Mr. Speaker, I am very proud of the fact that our government continues to listen to the concerns of firearm dealers and owners. They have important points to make and we are very attuned to what they are saying. That is why an amnesty is currently in place for prohibited handguns and unregistered restricted firearms until December 31, 2001.

The amnesty allows individuals who purchased prohibited, that is short barrelled .25 calibre or .32 calibre, handguns after the intended prohibition was announced in February 1995, and dealers who were left with inventory, to take appropriate action as required. The amnesty also protects individuals who may have come into possession of an unregistered restricted firearm, often through an estate, allowing them the opportunity to either register or dispose of it without fear or repercussion.

Responding to concerns from the public and the policing community, the government announced the prohibition of these handguns in February 1995. Incidentally, the police were at the justice committee last night and both the chiefs of police and the Canadian Association of Police again reaffirmed their strong views that this was appropriate and good legislation, and I think the record should reflect that.

However, all individuals who had registered or who had applied to register a prohibited handgun at that time were grandfathered and can continue to use their firearm with the appropriate authorization.

While the prohibition of these easily concealed firearms is in the interest of public safety and security, the government also recognizes the difficult situation of businesses that were caught with large inventories of short barrelled .25 calibre or .32 calibre handguns on February 14, 1995. This situation is addressed in amendments proposed in Bill C-15, which would grandfather these inventories, and was also addressed last year in Bill C-17.

Grandfathering these inventories would mean that businesses could dispose of the prohibited handguns by selling them to individuals who are grandfathered to possess such handguns and licensed to acquire them. This would help businesses and would not affect public safety as only licensed individuals could acquire them.

Another proposed amendment would change the grandfathering date for prohibited handguns to December 1, 1998, from February 14, 1995, so that correctly licensed individuals who lawfully acquired and registered a handgun while it was still restricted, that is between February 14, 1995 and December 1, 1998, can keep it.

Public safety would be maintained with the proposed changes because only those who were already in legal possession of these handguns since December 1, 1998, and who are properly trained and licensed to use prohibited handguns would be able to keep them. Ownership of prohibited handguns would continue to be limited to a very small number of individuals with grandfathered privileges.

Given the government's resolve to address these issues through Bill C-15B, the amnesty was recently extended until the end of this year to continue to protect both dealer inventories and individuals in possession of prohibited handguns until parliament completes its consideration of Bill C-15. I think that represents the values of Canadians and the values of this parliament.

[Criminal Code, November 8th, 2001]

Mr. Speaker, I am pleased to enter the debate with respect to Bill C-284. The bill is essentially the same as Bill C-259 in the last parliament. The only change is that the maximum fine has been doubled to $2 million.

The Standing Committee on Justice and Human Rights held a single day of hearings on the issue in the last parliament. No submissions were heard from the corporate sector, or from any experts in criminal law or for that matter the charter of rights and freedoms. There was no review of what was being done in other countries and no presentations were made with respect to specific legislation abroad.

The committee passed a motion that the criminal code or other appropriate federal statutes should be amended after consideration by the Standing Committee on Justice and Human Rights in accordance with recommendation 73 of the inquiry into the Westray disaster by the province of Nova Scotia. Given the brevity of the committee's hearing, it is understandable that it called for changes without specifying precisely what those changes should be.

The issue of corporate liability for criminal acts is complex and has been the subject of study by legislatures and courts for many years. There is no simple solution.

Attempts to reform the law in this area invariably require a great deal of study. In Britain the law commission began consulting on the law of manslaughter, including corporate responsibility for wrongful death in 1994. In May 2000, six years after the study began, the government accepted in principle the law commission's recommendation to create a new offence of corporate killing. It then proceeded to further consult on some points. No legislation has yet been introduced.

Australia passed new legislation dealing with corporate criminal liability in 1995, but the legislation was to come into force on proclamation or after five years to allow time to prepare for the changes. The process there began in 1987 with a report by experts reviewing the criminal law. The proposals were then studied by the standing committee of attorneys general and by the model criminal code officers committee.

We do not have to follow the approach taken in Australia or England in changing the law. We can make use of their experience and, more important, we can deal with a narrower question. What changes need to be made to make the criminal law reflect the reality of business in the 21st century?

Both the British and Australian processes were much wider with corporate liability as just one of many issues. Nevertheless, we must expect to take time to consider the issue fully because we will have to wrestle with very complex issues such as: Who for the purposes of criminal law is the corporation?

In some cases this may be clear. An individual often is the mind directing a large corporation and what that individual thinks and does is what the corporation thinks and does. However, if someone is killed in an industrial accident in a corporate office, it is quite probable that the individual who is the directing mind has never set foot in that office and has absolutely no idea of working conditions.

Bill C-284 proposes one model for determining who is the corporation by assigning criminal liability to a corporation for acts and omissions of directors, officers or persons to whom day to day management of a part of the company's activities has been delegated .

This is, at least on the surface, somewhat wider than the current Canadian law which looks to the directing mind of the corporation, but it does not appear to be as broad as the American vicarious liability standard.

However the proposed legislation still requires an examination of the corporate structure. How much control is implied by day to day management and what is a part of the corporation? Would this mean that a retailer is criminally responsible for the actions of the head of a shipping department in one of its stores even when he or she acted directly contrary to specific instructions? We must have legal advice on the implications of the proposed wording because these are important questions.

Should the change in the law be general or specific to certain offences?

The criminal code currently includes Her Majesty, public bodies, bodies corporate, societies and companies as persons, so that all of the offences in the code would apply to corporations, to the extent that a corporation is capable of committing them.

The leading case of Canadian Dredge and Dock, for example, dealt with a conspiracy to defraud. The Westray principals were charged with manslaughter and causing death by criminal negligence.

Bill C-284 both makes a corporation liable for any offence of which an individual could be found guilty and creates a separate new offence for a corporation of failing to take reasonable steps to provide safe working conditions. It is not clear why this particular offence should apply only to corporations. It is possible for a government to turn a blind eye to the many violations and not enforce the laws that are in fact on the books.

As I previously stated, in England the government has accepted a proposal by the law commission to create a new offence of corporate killing, where death results from corporate conduct far below the standard of what is reasonably to be expected. Fashioning a specific offence for a corporation might, in the result, prove to be the best approach.

The Australians, however, did not choose to proceed in this fashion. They created a new part which begins with the general principle “This code applies to bodies corporate in the same way as it applies to individuals. It so applies with such modifications as are set out in this part, and with such other modifications as are made necessary by the fact criminal liability is being imposed on bodies corporate rather than individuals”. The part then sets out rules regarding such matters as how to determine negligence.

In a paper prepared for the Uniform Law Conference, Professor Anne-Marie Boisvert of the faculty of law of the University of Montreal in 1999 recommended that there should be codified a notion of corporate fault that is more closely related to the way in which bodies corporate actually operate. She also recommended that there should be a distinct part of the criminal code expressly covering corporations. Such a part would define the conditions under which a corporation can be criminally liable; provide that any body corporate including not for profit corporations may be held liable; define what is an act of the corporation; clarify whether a corporation can raise such defences as necessity or compulsion by threats; and define what constitutes fault.

On what basis do we attribute criminal intent to a corporation? This too is a very important question.

The directing mind test, especially because it requires the same responsible person to have the necessary intent and to commit the offence, may not fit well with the way complex organizations work with head offices issuing directives, regional offices interpreting them and local managers implementing them.

It is highly unlikely that evidence will be found of a single person in a large corporation who issued an order to break the law. The actual criminal activity may be, as was the case in Westray, the result of many officers and employees of the company cutting corners.

Bill C-284 follows to some extent the recent changes to the law in Australia which provide that where negligence is a fault element and no individual in the company has that fault element, it is possible to find the necessary fault by proving that a corporate culture existed that directed, encouraged, tolerated or led to non-compliance.

It is important that we note a number of these issues. It is important that we deal with them appropriately. They are important questions.

I want to simply say in summary that while we recognize the desire of the sponsor of the bill to ensure that the criminal law copes better with potentially criminal activity by corporations, we are not convinced that Bill C-284 is necessarily the best model. Significantly more study and very broad consultation are required before the House can be satisfied that it has fashioned the best amendments to the criminal law.

Finally, I feel it is appropriate to remind members of the House that the criminal law always requires the highest level of proof, namely, proof beyond a reasonable doubt. Given the complexities of modern corporations, any criminal investigation is going to be lengthy and complex. Criminal law and criminal trials will also be long and complex.

The charge to the jury in the leading case, Canadian Dredge and Dock, took 11 days. It is highly unlikely that the investigation or prosecution of those charges would have been any simpler if the crown had to prove a corporate culture.

For this reason, it is vital that we ensure that the law governing Canadian corporations has appropriate penalties for breaches of safety. Action to prevent tragedies will always be more effective than trying to use criminal law after the fact.

This is an important issue, one well worth debating in the House. I look forward to listening to other members of parliament on this very important issue.

[Supply, October 29th, 2001]

Mr. Speaker, I understand discussions have taken place between all parties and I believe you would find consent for the following motion. I move:

That at the conclusion of the present debate on today's opposition motion, all questions necessary to dispose of this motion be deemed put, a recorded division deemed requested and deferred to the expiry of the time provided for government orders on Tuesday, October 30, 2001.

[Royal Prerogative of Mercy, October 26th, 2001]

Madam Speaker, it is my privilege to rise today to speak to Motion No. 372 presented by the member for Dartmouth. As hon. members well know, our system of laws is generally intended to serve the common good and all individuals are treated equally before the law.

I also believe there are times when the application of law may lead to unintended or unanticipated consequences for an individual. This may result in the imposition of an undue hardship or an inequity out of proportion to the nature of the offence or of the sentence, for that matter.

It may also be that there exists no other legal remedy to redress such an inequality and inequity in that all legal avenues normally available have in fact been exhausted. When such a situation arises the individual may seek recourse in what is known as a royal prerogative of mercy or clemency.

The royal prerogative of mercy is little understood by the majority of Canadians. Indeed it may not be fully understood by some members of the House.

Historically the royal prerogative of mercy is the oldest form of redress or intervention to right a wrong or correct an injustice. It originates from the absolute power of monarchs, kings, queens and emperors to dispense justice or to exercise mercy. They could sentence someone to prison and they could shorten the sentence if it were considered too harsh. They could sentence someone to death and they could commute that death sentence at will.

Of course much has changed since the time of monarchs who ruled with unfettered power. Today justice is administered under what we know to be the rule of law. The exercise of unfettered authority has been replaced with a system of laws administered by an independent judiciary according to clearly defined procedures that ensure due process for all concerned. That is as it should be.

However, as I said at the outset, there may well be individual circumstances when the rule of law and due process result in unintended consequences and the individual has no recourse but to seek clemency under the royal prerogative of mercy.

In Canada the royal prerogative of mercy is exercised by the Governor General under letters patent which stipulate the powers of that office or the governor in council under the criminal code. The royal prerogative of mercy is not a single remedy. It is not a one size fits all. Rather it can take a number of different forms to address the unique circumstances of an individual.

This is important to understand because when most people think of the royal prerogative they envisage that it somehow implies an individual is exonerated from a guilty verdict and that the sentence imposed by the court is eradicated. That is only true in the case of what is known as a free pardon, which is the ultimate and most rarely granted of the remedies available.

A free pardon is extended only in those cases when it has been demonstrated that somebody is wrongfully convicted, but there is already provision in the criminal code to deal with people who are wrongfully convicted. They may appeal to the Attorney General of Canada for a new trial, for example, under section 690 of the Criminal Code of Canada.

There have been no cases in the past 20 years where a free pardon has been granted to an individual who was wrongfully convicted of a criminal code offence. Recourse has always and was always sought under section 690 of the Criminal Code of Canada.

Another remedy available under the royal prerogative of mercy is a conditional pardon. It too can take different forms. It could, for example, result in the release of people from imprisonment earlier than would otherwise be allowed under the Corrections and Conditional Release Act. However they would remain under sentence subject to the supervision and control of a parole officer.

Another form of conditional pardon could include a remission of the remainder of the sentence, which can only be granted by the Governor General, and the setting aside of the criminal record under the Criminal Records Act.

There have also been many instances where a judicial error or an anomaly in the administration of justice could only be addressed under the royal prerogative of mercy.

For example, it could happen that a court has no record or has lost a record of a fine having been paid thereby rendering an applicant ineligible for a pardon under the Criminal Records Act.

I would like to underline that clemency is granted only in exceptional circumstances and only in very deserving cases involving those who have been convicted of federal offences. It is an ultimate recourse when all other avenues have been exhausted.

It deals with the circumstances of an individual who was convicted and on whom a sentence was imposed, and determines whether that sentence resulted in an undue hardship that was not intended by either the legislators or the judiciary.

Consider also the case of an individual, sentenced to life for second degree murder, who is diagnosed as suffering from a serious disorder of the central nervous system, resulting in paralysis and impaired speech. The medical prognosis is poor and doctors unanimously recommend transfer to a chronic care facility.

Clemency might be granted in such a case because further incarceration may constitute a more severe hardship than would otherwise have been foreseen. It may be that the offender cannot be adequately cared for in a prison setting.

Clemency in such a case might take the form of a conditional pardon resulting in release from prison under the supervision of a parole officer. The guilty verdict still stands and the applicant continues to serve his or her sentence under conditions of parole supervision and monitoring in the community.

The royal prerogative of mercy is exercised according to general principles which have evolved over time and which are meant to ensure a fair and equitable process.

First, the independence of the judiciary must be respected in that there must be stronger and more specific grounds to recommend action that might counter a court's decision.

Second, the applicant must have exhausted all other avenues available under the criminal code or other pertinent legislation. The royal prerogative of mercy is not intended to replace that process.

Third, the royal prerogative of mercy is intended only for those exceptional cases in which consideration of justice, humanity and compassion override the normal administration of justice.

Fourth, and most important, there must be evidence of substantial injustice or undue hardship out of proportion to the nature of the offence or the intended consequence of a particular sanction. In assessing this, each application is strictly examined on its own merits.

Clemency will not be considered where the difficulty experienced by an individual applicant results from the normal consequences of the application of law. It is not a mechanism to review the merits of existing legislation or those of the judicial system in general.

The royal prerogative of mercy is used very sparingly. It is granted only in instances when there is evidence of undue hardship beyond the intended consequences of a sentence and only in cases where there is no other legal remedy. It is unfettered in that it can apply a remedy that is best suited to an individual circumstance.

The motion before us seeks the support of the members of the House for the principle that, in the exercise of the royal prerogative of mercy, the lives of all Canadians must be treated and perceived to be treated equally under the law. The motion also underlines the fact that this should include the lives of persons with disabilities.

If we interpret the motion from the point of view of the applicant for clemency, I would submit that by its very nature the royal prerogative of mercy already focuses principally on the individual. It is concerned solely with the applicant, not with the circumstances of others, be they family members, friends or others in the community.

If the member's motion is aimed at the victim, then I would ask hon. members in the House to consider whether it is appropriate for us to place limits or qualifications on the exercise of the royal prerogative of mercy. I would also ask whether indeed this House has the constitutional authority to impose such limits.

I hope my comments have shed some light on this very important matter. It is a matter of great interest to many Canadians. Clearly, I wanted to be able to outline some of the points that were raised in my speech because I consider them to be important with respect to the motion.

[Transportation Appeal Tribunal of Canada Act, October 26th, 2001]

Madam Speaker, having listened intently to the debate and the points made by a number of hon. members in the House, Bill C-34, the transportation appeal tribunal of Canada act, is a good bill and worthy of support. I conclude by asking all members to support the bill in the best interests of the country.