Roger Gallaway

[Canadian Bill Of Rights, June 10th, 1996]

Mr. Speaker, I appreciate the opportunity to speak to this motion. The hon. member for Comox-Alberni has proposed a motion that provides for a greater measure of protection for individual property rights with an amendment to the Canadian Bill of Rights. We should acknowledge the Canadian Bill of Rights is part of Canada's longstanding commitment to human rights.

The bill of rights already protects an individual's right to the enjoyment of property. Origins of Canada's human rights movement can be traced to the desire to ensure that the atrocities that occurred to millions of Jews, members of ethnic minorities, political dissidents, people with mental and physical disabilities and homosexuals could not occur in Canada.

People were stripped of their property rights, ghettoized, imprisoned, forced into labour camps and murdered by the Nazis. These terrible events had a profound impact on the social conscience of the world and Canadians in particular. In response, the United Nations drafted the UN Declaration of Human Rights and the Parliament of the day enacted the Canadian Bill of Rights.

The Canadian Bill of Rights is a statute that has a quasi-constitutional status. Many of the provisions of the bill have been overtaken by specific provisions of the Canadian Charter of Rights and Freedoms. As the charter does not have an explicit section on property rights it can therefore be argued this provision of the bill of rights still operates to protect property rights.

The Canadian Bill of Rights states:

It is hereby recognized and declared that in Canada there have existed and shall continue to exist without discrimination by reason race, national origin, colour, religion or sex, the following human rights and fundamental freedoms, namely:

(a) the right of the individual to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law.

It can be argued this provision provides the protection the hon. member seeks. An individual cannot be deprived of property rights except by due process of law. It should be remembered the bill of rights applies only to federal laws. Unlike the charter, it does not apply to provincial laws.

In addition to the protections offered to property rights through the bill of rights, we have developed elaborate laws regulating and protecting the ownership and enjoyment of property. For example, real and personal property laws regulate the acquisition and disposition of all kinds of property. These laws protect individuals from fraud and other mistakes that may result in loss of property.

Over the years there has been an evolution in the definition of property and in the protection of the right of the individual to enjoy property. The federal Divorce Act and provincial and territorial family law acts ensure that women are not deprived of their right to a fair share of matrimonial property and assets regardless of who has legal title.

The term "property" has taken on many meanings. In the United States the constitutional right to the enjoyment of property has been defined to include academic tenure, a driver's licence and disability benefits. I am concerned that defining further individual property rights could affect social benefits and the division of assets under the Divorce Act.

Of course like all other rights the right to enjoy property is subject to some limitations in our society. It is limited by laws that regulate the use of property in the public interest. Land use, planning and zoning laws may limit the type of building that can be placed on residential lots. Environmental laws regulate everything from the disposal of hazardous waste to the removal of trees. Laws regulate the ownership of transactions in shares in limited companies. Other laws regulate bankruptcy and the ownership of land by non-Canadians, and the list goes on.

All of those laws impose real limits on the ownership and the use of property and no one disputes that these are necessary limits. These restrictions on the enjoyment of property must be kept in mind when we look at amending the Canadian Bill of Rights.

The notion of property is far broader than real property. Given the broad meaning that can be applied to real personal property, we must be careful in considering an amendment to the existing protection for property rights in a quasi-constitutional document.

The Americans, we know, have had some unfortunate experiences with property rights in the context of their Constitution. It should also be noted that women's advocacy groups have had a number of concerns with the further entrenchment of property rights. The notion that a man's home is his castle is a disturbing concept to many women who have been denied their share of family assets. It has only been a few years since a woman was denied a share of the family farm she worked on for many years.

We have moved beyond this case in providing statutory protection for women, but we live in a complex society with many interests and competing rights. From the division of the matrimonial home to environmental and zoning bylaws, we must recognize that rights are not absolute.

To conclude, I believe that property rights are adequately protected in Canada in the Canadian Bill of Rights, in other statutes and in the common law. There are more pressing challenges facing the government than the need to provide additional protection for property rights.

The government is committed to protecting our social safety net, including the renewal of our health system while reducing the deficit. It is working on opportunities for youth who are our future. We are concerned with barriers that aboriginal people and people with disabilities are facing. Let us concentrate on the more pressing problems we are facing.

Yes property rights are important, but I believe they are sufficiently protected in existing legislation, particularly in the Canadian Bill of Rights. I cannot support this motion.

[Supply, April 29th, 1996]

Mr. Speaker, a couple of weeks ago before the justice committee appeared victims' rights groups. The sole point raised in this testimony was that as victims they felt intimidated by certain gangs within a community. There is no question these people were the victims of a horrendous crime.

If the federal government had two years ago enacted victims' rights legislation there would be nothing the victims in this case could do to enforce those rights because, as we know, policing falls within the jurisdiction of the provinces. As a result, if the police do not respond to a call, if the police do or do not intervene, a federal bill giving them some sort of a right cannot be enforced provincially. It can be enforced only with respect to the jurisdiction of the federal government. We may not like this, but that is a fact of Canadian life.

Therefore I would suggest that in this case a statement of principles which becomes policy within the respective federal and provincial jurisdictions is just as effective as a bill of rights attempting to effect provincial jurisdiction but which will have no effect whatsoever on provincial authorities.

We can have a bill of rights but unless we are legislating within our purview the end result is that we are making a statement of principles. As we know, we cannot legislate, we cannot dictate to police forces how many officers they will have. Only the solicitor general of a province can do that.

[Supply, April 29th, 1996]

Mr. Speaker, I find it amusing if not ironic that we talk about the justice industry in this country. I have to turn it back and ask if the Reform Party is interested in doing away with those who represent people before the courts, if it would do away with their right to counsel, if it would do away with their right to a proper defence, if it willingly and wilfully eliminate people's access to knowledge of the law, and if it would say a person is going to go into court, not be represented, be accused by the full force of the state and be left to fly by the seat of their pants.

The hon. member wants to know if it is better to have a statement of principles or to have a bill of rights. I will give as an example witnesses who appeared before the justice committee two weeks ago. The hon. member was not at that meeting. There appeared before the justice committee two weeks ago-

[Supply, April 29th, 1996]

Mr. Speaker, it is my pleasure to speak on the motion today which urges the government to direct the Standing Committee on Justice and Legal Affairs to draft a victims bill of rights.

The government has continued a trend to be more responsive to victims. The improvements to the justice system, initiated by the federal government, were made without any victims bill of rights. The government took action because it was the right thing to do.

Earlier today we heard numerous examples of specific initiatives to benefit victims of crime. These initiatives go well beyond the principles that would be set out in a victims bill of rights. Actions do speak louder than words.

I support the adoption of a federal declaration on the rights of victims, but I believe there are several factors to consider. I am in favour of a declaration of rights for victims, but I believe we should be speaking about concrete rights for victims. In lending support for a national bill, which I assume suggests federal legislation, we must be careful not to prescribe rights over which the federal government has no jurisdiction and no authority to enforce.

Actions speak louder than words. Setting out principles and calling them rights which could not be effectively enforced would be pointless. We should direct our energy at addressing specific issues which we have the power to address.

Recommendations for a victims bill of rights are not novel. This debate has been ongoing since the mid-1980s. Ever since the American Congress passed its federal victims bill of rights, many Canadians have advocated that we follow suit. It is difficult to disagree with a bill of rights for victims. However, we should ensure that victims of crime will benefit from a so-called bill of rights.

We have had this discussion at both levels of government, federal and provincial. Since the report to ministers of justice of the federal task force on justice for victims of crime in 1983, the federal government, the provinces and territories have been engaged in ongoing consultations regarding improvements to the criminal justice system which would benefit victims of crime within the respective areas of responsibility. These consultations have squarely addressed the enactment of a victims bill of rights.

In 1985 Canada co-sponsored the United Nations statement of basic principles of justice for victims of crime. Canada's justice system already reflected those principles in 1985. The UN declaration prompted the federal and provincial governments to re-examine the issue of a victims bill of rights. There was an overwhelming consensus that a national bill of rights would not advance the cause of victims.

While all the provinces and the federal government were sincerely committed to making changes to the justice system, it was recognized that certain concerns could only be addressed by provincial legislation and other concerns could be addressed by federal legislation. The majority of concerns could not be addressed by legislation at all, but by changing attitudes about the role of the victim in the process and about basic human values of dignity and respect.

It was also recognized that in order to be meaningful a bill of rights must have a mechanism of enforcement. Rights without remedies cannot truly be said to be rights. For example, if a bill of rights states that victims have the right to receive timely information about the status of the investigation or the prosecution of the offender, what is the remedy when they feel they have not received

timely information? Who is responsible? Likely it is the police and/or the crown.

How can a single piece of legislation assign obligations to different participants in a justice system that play distinct roles and are employed by separate ministries? Moreover what is the remedy? Should the prosecution be called off because the victim did not get information? I do not think so. The advocates of a bill of rights do not think so either.

The example makes the point that all we really can do is prescribe a set of principles to guide all players in the criminal justice system and continue to encourage them to adhere to these principles. The victim is essential to the proper functioning of our criminal justice system and is deserving of the utmost consideration at all stages in the process.

The federal government is responsible for enacting the criminal law while the provinces are generally responsible for the enforcement of the law, the prosecution of offences and the administration of justice. Given that a bill of rights would not be of rights at all but of principles, the provinces and the federal government would get together and do something else.

In 1988 at a meeting of justice ministers, the federal and provincial governments endorsed the Canadian statement of basic principles of justice for victims of crime. The notion of a statement rather than a bill of rights addressed both the jurisdictional and the practical concerns. All jurisdictions would ensure that whatever initiatives they pursued would reflect these principles, whether in policy or in legislation.

Since 1988 several provinces, including Manitoba, Nova Scotia, New Brunswick, Quebec, Ontario, Alberta and both the territories have enacted victim legislation which does refer to these principles.

The Canadian statement of basic principles of justice for victims of crime states that in recognition of the United Nations declaration of basic principles of justice for victims of crime, federal and provincial ministers responsible for criminal justice agree that the following principles should guide Canadian society in promoting access to justice, fair treatment and provision of assistance for victims of crime.

First, victims should be treated with courtesy, compassion and respect for their dignity and privacy. They should suffer the minimum of necessary inconvenience from their involvement with the criminal justice system.

Victims should receive through formal and informal procedures prompt and fair redress for the harm which they have suffered. Information regarding remedies and the mechanisms to obtain them should be made available to victims.

Information should made available to victims about their participation in criminal proceedings and the scheduling, progress and ultimate disposition of the proceedings.

Where appropriate the views and concerns of victims should be ascertained and assistance provided throughout the criminal process.

Where the personal interests of the victim are affected, the views or concerns of the victim should be brought to the attention of the court where appropriate and consistent with criminal law and procedure.

Measures should be taken when necessary to ensure the safety of victims and their families and to protect them from intimidation and retaliation.

Enhanced training should be made available to sensitize criminal justice personnel to the needs and concerns of victims and guidelines developed where appropriate for this purpose.

Victims should be informed of the availability of health and social services and other relevant assistance so they might continue to receive the necessary medical, psychological and social assistance through existing programs and services. Also, victims should report the crime and co-operate with law enforcement authorities.

As members can see, the majority of these principles relate to matters that can be addressed only by the police, prosecutors or court officials. In other words, the majority of victim issues fall to the provinces. It was therefore essential that the provinces had input into the statement and so overwhelmingly supported it.

The question is whether a national bill of rights for victims will do more than the existing statement of principles. A national bill of rights would likely be welcomed by victims, but they would be even more interested in concrete action on the government's commitment to issues like gun control, sentencing and the recently introduced initiatives of Bill C-17 and Bill C-27, which include provisions to strengthen or expand existing protections such as peace bonds and publication bans. Again, actions speak louder than words.

We must also look at the progress made in the last 15 years and talk to victims to find out what they really need in 1996.

In February of this year I read an article in the Vancouver Sun that highlighted the hon. member's proposal for victim rights, in many respects similar to the Canadian statement of basic principles: a right to information about services, a right to be informed of the offender's status, court dates, sentencing dates, a right to an oral or victim impact statement and a right to protection from intimidation.

It also went beyond the existing statement that proposed a right to participate in plea bargain discussions, a right to have police lay charges in domestic violence cases and a right to know if an offender has a sexually transmitted disease. These are certainly controversial issues but they are probably incapable of a remedy in the event of a breach. Moreover, they impact on areas that only the provinces can address.

I emphasize again that I strongly believe that victims of crime have a role to play in our criminal justice system and as such we must do whatever is feasible to ensure their participation does not result in revictimization. Ideally we would like to prevent crime and in consequence prevent victimization.

While we are making significant inroads in crime prevention, we know there will always be victims of crime. That is a sad but true fact. Therefore we must be responsive to their concerns. I believe the government has shown leadership and we know the work is not done. It still requires improvement in a variety of ways, all of which will in turn benefit the victims.

I am also aware the provinces continue to pursue initiatives to improve the administration of justice to benefit victims. I am aware the issue will be discussed at next week's meeting of federal, provincial and territorial ministers responsible for criminal justice. I am sure the provinces will be keenly interested in the hon. member's motion and in today's debate.

While I have no problem supporting a bill of rights for victims, I do not believe it is a cure-all remedy.

[Broadcasting Act, April 26th, 1996]

Mr. Speaker, as the sponsor of this bill it is my pleasure to be the last speaker.

I will speak very briefly. I hope that all members of this place will support this bill. As many members have stated, people want this bill because they want control over what comes into their homes. People do not want to give control to the CRTC. The CRTC can determine who will be on the airwaves but people want some mode of governance of what they see on their televisions and what they are going to pay for.

This, to me, is not a question of Canadian culture. It is a question of choice for Canadians. That is the reason I brought in this bill and why I am going to ask all members of this place to support it.

[Petitions, March 28th, 1996]

Mr. Speaker, I am pleased to present two petitions, duly certified, dealing with gasoline prices.

[Broadcasting Act, March 27th, 1996]

moved that Bill C-216, an act to amend the Broadcasting Act (broadcasting policy) be read the second time and referred to a committee.

Mr. Speaker, it is my pleasure to begin second reading debate on Bill C-216, an act to amend the Broadcasting Act (broadcasting policy). The act has one objective and that is to control the relationship more completely between the Canadian Radio-television and Telecommunications Commission, which Canadians love to call the CRTC, and the public. For the purposes of this discussion I refer to the public as those people who presently receive television services by way of cable transmission, but this bill will also cover those Canadians who will soon receive television services by way of telephone lines or direct to home satellite services.

Controlling a relationship is never easy, we all know that. Yet this is a relationship, the connection between the CRTC and its public, which the Government of Canada through the Broadcasting Act brought into existence and which we by Bill C-216 can once again bring back under control.

There are three components or factors to this argument which I refer to for discussion purposes as the three c s. These are: cost, choice and culture.

Last year when the CRTC authorized the grouping or bundling of new programs on to cable carriers and at the same time allowed cable companies across this country to charge more for them, that commission, those people who are supposedly protecting us and nurturing Canadian culture, forgot, ignored, or what I would suggest, turned their collective backs on Canadian cable subscribers. The consumers had two choices: they either paid more or they received less.

Who in this place could forget the anger, the vitriol and the simple disgust of those who were being held for ransom? We, the representatives of the people in this place, were besieged, harangued and generally deluged with hundreds of calls from angry consumers who from their perspective generally knew that their pockets were being picked with the express consent of the CRTC, the very government agency which was put there to protect them.

Canadian consumers quite simply were held ransom by an industry with an astounding 52 per cent return on its capital investment. Who can forget at the same time the reaction of the CRTC, which referred to this practice of negative option billing as a necessary evil?

From my perspective as a representative of a certain group of people, it was a necessary evil to tell my constituents that they would receive, wrapped in the bundle of new channels, Canadian culture.

As to the issues of cost and choice, the CRTC chose not to do anything. Who can forget that Keith Spicer, the architect of this policy, was out of the country on vacation when this storm struck?

Keith Spicer, the so-called czar of Canadian culture, was on a foreign holiday as Canadians received a post Christmas gift they did not want.

While Keith was out exploring foreign cultures, members of the House were publicly stating, to use one quote, that the CRTC was in bed with the cable companies. Newspapers across the country gave anecdotal reports of what individual consumers felt and planned to do. All ridings across the country are certainly aware of that.

Let us in the House not forget that it was not the cable companies that decided Canadians would receive seven new channels they did not ask for. It was the CRTC that licensed the new services after deciding which, in its collective wisdom, were best for the whole country.

At the same time, it was the CRTC that permitted the packaging of new channels, totally unsolicited by Canadians, with popular

programs such as "CNN", an American network, to give its favourite seven infant channels a chance of survival.

The Globe and Mail noted in its editorial of January 7, 1995: ``Effectively the commission was levying a tax on television viewers to support quality broadcasting''.

Canadians some 15 months later understand what the Consumers Association of Canada observed in January 1995, that the equality for the practice was backward.

The CRTC and the cable industry justified the negative option tactic in the name of culture, but in reality it was driven by business imperatives. It is very interesting.

It was reported on January 7, 1995 that the president of Rogers Cablesystems, Colin Watson, in an interview which was reported widely across the country stated that this sleight of hand called bundling or negative option billing was the only way that Rogers Cablesystems could sign up enough new customers.

I do not have to suggest to anyone in the House or anyone watching the proceedings today that every business in the country would love to be the beneficiary of this kind of largesse which the CRTC was doling out but for which the Canadian consumer was being told they would pay.

Canadian viewers were being told what they could watch and what they would pay in the name of Canadian culture. Is it not interesting that one of the conduits of Canadian culture has today as its most popular program, according to the rating agencies, reruns of the "Mary Tyler Show", a great Canadian show, and that another has that hybrid of Cosmopolitan and Vogue magazines called the ``Fashion File'' as its most popular program.

In return for this, seven new networks were guaranteed cash for life-that is my term-by the CRTC. Cable companies, as we now know, reluctantly bent to public pressure. They bent in the sense that they apologized for the behaviour and most gave a window of opportunity to opt out of the new channels, but never did they allow Canadians to decide up front that they could decline the channels.

The onus, the burden, the obligation was decidedly on the individual within a certain timeframe to either cancel the channels or pay for them. This is a unique and tragically Canadian way of selling Canadian culture.

More important, did Canadians receive any assurances from the CRTC that this would not happen again? Apologize? The cable companies did. The CRTC? Certainly not. Mr. Spicer and his commission, in my opinion, are much too busy regulating to acknowledge any errors.

Last week my office received from the CRTC a recent bulletin which stated: "The CRTC regulates the rates but expects each cable operator to inform subscribers in advance what subscribers must do to have optional packages removed". I have to emphasize "removed", not "added".

The Canadian public today, 15 months later, does not have real choice on what services are to be added but only, in the words of the CRTC, what can be removed. Quite simply, negative option billing still survives. It is very much alive and well.

Canadians would also be upset to learn the CRTC is about to consider 40 new applications for specialty channels. Members of the House and Canadians will be pleased to know that the potential exists to receive, if the CRTC will bless them, such great Canadian programming as the "Horse Network", the "Home and Garden Network" and the "Mystery Network".

Forty corporations, most of them individuals who have recently incorporated shell companies, are poised to sell a concept which they hope will be richly rewarded by these guardians of Canadian television.

Soon telephone companies and direct to home satellite services will be channelling TV programming into homes across the country. What can those people expect? If we follow Mr. Spicer, the chair of the CRTC, in a speech delivered to the Canadian Cable Television Association, he noted that Canadian consumers want, deserve and will increasingly settle for nothing less than the maximum control possible over which services they select and pay for. As a consumer, Mr. Spicer agrees 100 per cent with that goal. He went on to say that full pick and pay, beyond a few rock bottom, common national interest services, can come only after this decade, meaning sometime in the year 2000 or thereafter.

With 40 applicants lining up, with new carriers pressing to enter the marketplace, we in the House have a choice, a choice we must make for consumers. That choice is clear. Bill C-216 would amend the Broadcasting Act, specifically section 3, so that consumers from this time forward will be given control over what they receive and the cost of what they receive.

Section 5 of the act imposes an obligation on the CRTC to regulate and supervise all aspects of the Canadian broadcasting system with a view to implementing the broadcasting policy which is set out in the act.

This bill would amend the broadcasting policy section, section 3, so that a cable distributor or other distribution undertaking, which could be a telephone company or a direct to home satellite company, could not demand money from a person for the provision or sale of a new programming service when the person has not agreed to receive the new service. In the vernacular, consumers will not pay for what they do not want. Certainly this is what consumers want.

The Consumers Association of Canada liked this bill. It issued a press release yesterday which called on members of the House to support it. At the same time the Public Interest Advocacy Centre has endorsed it. That group noted there are generations of laws protecting consumers against unsolicited goods and yet still today

cable companies, as merchandisers of goods, do not have to await the consumer's choice.

Section 3 of the Broadcasting Act imposes a statutory duty on the CRTC to be "responsive to the evolving demands of the public". Since the CRTC has been silent for 15 months, we as members of the House can now move to respond to the demands of the public. There are those who would suggest that as members of the House we have a statutory duty to uphold the laws of the country.

As is often the case there is always the question of powers between the federal government and the provinces. Certainly in the House we have the authority to regulate in this domain throughout Canada and we, the members of the House of all parties, have the opportunity to take in hand the rights and the interests of consumers.

The issue of provincial versus federal jurisdiction is as old as the country. The question of whether a law is intra vires or ultra vires has always been a healthy industry for the legal profession and certainly has kept the judiciary busy.

When the storm erupted over this issue last year the then minister of Canadian heritage stated, as was reported by the press, that this was a matter of provincial jurisdiction. He then a few days later acknowledged that broadcasting was four square within federal jurisdiction.

We must remember that cable companies as federally regulated undertakings can claim immunity from provincial laws, especially consumer protection laws. Quebec has a consumer protection act which would appear to forbid the practice. In section 5 of that act the following are exempt from the application of the title on contract regarding goods and services: contracts regarding any telecommunication service supplied by an operating company within the meaning of section 2.

Professor Hudson Janisch in an interview with the Ottawa Citizen January 7, 1995 noted that provinces are free to control commerce but they lose that control. Quebec acknowledged that in section 5 when it comes to federally regulated industries such as cable.

Professor Janisch, an expert and professor in regulatory law at the University of Toronto, pointed out that the Broadcasting Act instructs the CRTC to protect consumers as set out section 3 of that act.

There are a number of underlying factors we must realize. Consumer protection is not clearly federal, it is not clearly provincial. The federal government has jurisdiction over cable television pursuant to its powers. Consumer protection legislation, whether enacted by the federal or provincial governments, usually provides a remedy. This bill does not provide a remedy. Proposed Bill C-216 does not provide this remedy to consumers because clearly it is not consumer protection legislation.

The CRTC does not prohibit cable companies from using negative option billing, we all know that, to sell new discretionary services because it does not regulate discretionary services. It could regulate discretionary services but it has decided not to do so.

Instead it informs cable operators that it expects them to notify subscribers when they will be given new services and how to opt out if they wish. The CRTC is required by section 5 to regulate and supervise all aspects of the Canadian broadcasting system with a view to implementing the broadcasting policy set out in section 3(1).

We know that cable companies have used negative option billing. There are 40 applicants which now want to get on the system and enter the homes of Canadians. There is a new method by which cable providers could still slide those services in without using negative option billing. If we assume there are four new channels, they will provide these services free for six or eight or twelve months and then will apply for a rate increase. We have the opportunity by this bill to stop these hybrid variations on negative option billing.

There will be those who say this bill is not necessary. I have heard representations from public servants who maintain this legislation is not necessary; it can be done by regulation, it can be done by ministerial directive, it can be done by all sorts of methods. We know that regulation changes. Regulation is not law. It is not in a statute. All of us know that ministers come and go and that ministerial directives can easily be changed.

The only assurance anyone could possibly give would be that there is no assurance at the moment unless Bill C-216 is passed. We must embody in statute, in the Broadcasting Act, that this practice is policy in this country. On behalf of Canadian consumers we must be willing to build a firewall between the CRTC and the consuming public to ensure that this does not happen again, either directly as it did last year or in some other hybrid variation.

[Indian Affairs, March 27th, 1996]

Mr. Speaker, my question is for the Minister of Indian Affairs and Northern Development.

Last December the minister participated in a sacred assembly where he was asked to establish a national aboriginal day that would formally recognize aboriginal people and their contributions to society. I would like to ask the minister why he is considering such a day and if he will act on it.

[Lacrosse, March 25th, 1996]

Mr. Speaker, my question is for the Minister of Canadian Heritage.

The House declared lacrosse to be Canada's national summer sport and at the same time Sports Canada stopped funding the Canadian Lacrosse Association. Will the minister recognize the more than 200,000 participants in this sport and acknowledge its place in our heritage by restoring funding to lacrosse?

[Dangerous Offenders, March 25th, 1996]

Mr. Speaker, Motion No. M-116 is identical to motion numbered M-461 debated during the last session. It did not win approval of the House. I note that the hon. member keeps trying on this subject.

At the outset, I do not believe that the hon. member for Surrey-White Rock-South Langley has thought this idea through, either in terms of its legal impact or its practicalities. Let us be clear on exactly what this amendment to the Criminal Code would require if it were approved.

First, every criminal who is convicted of a serious sexual offence, namely sexual assault under sections 271, 272 and 273 of the code would have to be examined by two psychiatrists in order that the risk of reoffending be determined. If they conclude that the risk is high, then a dangerous offender application would, of necessity, have to be launched. There would be no discretion on the part of the judge and certainly not on the part of the crown prosecutor.

Under the present system, the judge considers relevant information about the offender's criminal history and the mental state of the offender at the time of the offence. This usually takes the form of a formal pre-sentence report. Of course the perspective of the victim is considered.

In other words, in a normal case a whole range of information is taken into account in order to determine the appropriate sentence. If this motion were to be adopted, every convicted sex offender would be remanded to a psychiatric facility for a thorough examination by two psychiatrists. These psychiatrists could give a precise prediction of the risk presented by every criminal.

Under current law the crown attorney and the judge are the authorities who decide whether to seek the opinion of psychiatrists on the danger posed by a convicted person. It is not the other way around. The psychiatrists do not tell the officers of the court whether to proceed with a dangerous offender application.

There is good reason for giving the crown and judges the discretion to seek a detailed psychiatric examination of the offender and to initiate a dangerous offender application. It is because the dangerous offender process is essentially and primarily a legal one, it is not just a question of psychiatric prediction.

The crown attorney has to decide whether the dangerous offender application will meet the legal standards set out in part XXIV of the Criminal Code. For example, section 753 of the code requires the crown to show that the offender "by his conduct in any sexual matter, including that involved in the commission of the offence for which he has been convicted," has shown a failure to control his sexual impulses and a likelihood of causing serious injury in the future.

This is a legal test, as the courts have repeatedly pointed out. There is no point in making an application under part XXIV if it has no chance of succeeding.

I do not wish to denigrate the role of psychiatry in this process. Indeed, dangerous offender rules require that psychiatric evidence be presented for both sides at the dangerous offender hearing.

I also note the references which the hon. member made in the last debate on this issue to the work of Dr. Robert Hare in predicting the risk of recidivism by psychopaths, including psychopathic sex offenders.

The ability of psychiatrists and psychologists to assess the nature and degree of risk of offenders has certainly improved in the last decade. I have heard Canada described as a leader in this field. I further note that the Correctional Service of Canada employs a wide range of clinical and actuarial testing in its intake and case management programs for federal inmates.

The proposed amendment to the Criminal Code has the balance wrong. It would compel the crown to bring a dangerous offender application every time a pair of psychiatrists reach a medical conclusion about risk. Perhaps if the motion called for discretion, it might receive more support. However, the motion advocates a sweeping measure that would diminish the role of judges and prosecutors and indiscriminately force every case of sexual offending to proceed through a lengthy and expensive examination by psychiatrists, even when there is little chance of those psychiatrists labelling the offender as high risk.

I am glad that the hon. member has such faith in psychiatrists. Perhaps she is unaware that the Canadian Psychiatric Association has stated that there is already a shortage of qualified forensic psychiatrists in Canada. The Correctional Service of Canada and provincial departments of justice are already hard pressed to find psychiatric advice even for priority cases.

I find it interesting that the Reform Party will spare no expense in this area, even if the chances of winning a dangerous offender case are thin or remote. To put this in context, I refer members to figures which were recently released by Statistics Canada.

In 1994-95 the federal government spent $913 million on adult corrections. The provinces and territories spent another $980 million. The capital cost of building federal penitentiaries increased 70 per cent between 1990-91 and 1994-95. It costs taxpayers $44,000 per year to keep a person in a federal penitentiary. The per capita cost to operate the adult correction system represents $65 for each Canadian.

Could we not be a bit more selective in where we focus our resources? Did the hon. member do a cost analysis?

I would like to suggest there is a way to be selective and strategic in the way in which our limited resources are employed. The speech from the throne of February 27 of this year contains the following statement:

The government will focus corrections resources on high-risk offenders while increasing efforts to lower the number of young people who come into conflict with the justice system. The government will develop innovative alternatives to incarceration for low-risk offenders.

This motion is typical of measures that unselectively demand indeterminate detention for crimes that should be targeted much more carefully. I believe the important word here is carefully.

I trust prosecutors, courts and juries to pass the appropriate judgments on sex offenders. We all expect that. The question that must be asked is whether sex offenders are slipping through the system. Are opportunities for dangerous offenders being missed?

Federal and provincial ministers of justice certainly agree the dangerous offenders provisions are an extremely valuable tool if used properly.

I note that during the last debate on this identical motion the Minister of Justice made reference to the dangerous offender flagging system. This system has been set up by the RCMP working closely with the provinces. It allows police and prosecutors to identify criminals who appear to demonstrate a high and continuing risk of future violent conduct.

Police and crowns can then become aware of these individuals through a flag placed on the data banks of the Canadian Police Information Centre, CPIC. I am informed that most provinces and territories have designated co-ordinators to operate the provincial end of the system and that a number of offenders have already been flagged. It is this kind of targeted measure that will make the dangerous offender procedure more effective.

The Supreme Court of Canada has ruled that the dangerous offender sentencing procedure as set out in part XXIV of the Criminal Code is a well tailored scheme that meets the requirements of the charter of rights and freedoms. The criteria are reasonable and focus on a select group of high risk offenders.

If the sweeping, unselective amendments anticipated in this motion were implemented there would be a considerable risk that the entire dangerous offender scheme would be undermined and discredited. I cannot support the motion.