John Nunziata

[Criminal Code, June 13th, 1995]

Madam Speaker, I appreciate the opportunity to make further submissions on the legislation. Earlier I spoke about the alternative measures section in the code. I indicated then that I disagreed with the provision that would allow attorneys general across the country to use their discretion and not prosecute serious crimes. It is somewhat inconsistent now that the bill purports to deal more harshly with those who commit crimes motivated by hate, knowing that a court could very well divert an offender who commits an offence out of the criminal justice system and invoke the alternative measures.

The bill is not about sexual orientation. The bill is not about homosexuality. Frankly what the hon. member for Burnaby-Kingsway and the hon. member for Hochelaga-Maisonneuve do in the confines of their bedrooms is their business. That is not what the bill purports to deal with.

The question of whether or not homosexuality is immoral is not the issue with the legislation. As the hon. member indicated, that debate is the real debate and that debate will only take place when a bill is put before the House dealing with amendments to the Canadian Human Rights Act. Bill C-41 is an omnibus bill. It is referred to as an act to amend the Criminal Code (sentencing) and other acts in consequence thereof.

If we look at the index we see it deals with alternative measures, purpose and principles of sentencing, punishment generally, procedure and evidence, restitution, conditional sentence of imprisonment, fines and forfeitures. The bill is not about sexual orientation or homosexuality. It is often referred to in the media as the hate crime bill. One section deals with hate crime and that is section 718.2. The section purports to deal with hate motivated crimes. The bill is not about homosexuality; it is about political correctness.

The first question I ask as a lawyer and as a Canadian is whether we need this section in the Criminal Code. The answer is very simply no. This section is here not because there is a void that has to be filled in criminal law. It is not here because there is a groundswell of support for this change in the country. It is because specific groups in society have effectively lobbied the Government of Canada to inject into the criminal law an unnecessary section.

I quote from a reputable newspaper that has never been accused of being homophobic, anti-homosexual or anything of the sort. The Globe and Mail , wrote an editorial entitled ``Unnecessary Laws'' which takes the position that the section is unnecessary. My views happen to coincide completely with the arguments made in the editorial. I quote:

The new sentencing guidelines are redundant and ill considered, injecting politics once again into the making of criminal law.

D (2155)

It goes on to say:

If Parliament wants to protect threatened groups from hate crimes, it cannot exclude certain groups that some of its members happen not to like. The real problem with section 718.2 is not that it refers to homosexuals but that it is proposed at all.

And this is the key:

Judges already have wide discretion in sentencing. They often use this discretion to hand out particularly harsh sentences for crimes they consider particularly harmful to society. As far as we can determine the government has presented no evidence that judges are being unduly lenient with criminals motivated by hate. So why pass a law that in effect asks them to be tougher?

What evidence does the Minister of Justice have or what evidence did he present to the justice committee to warrant this new section in the Criminal Code of Canada? As far as I know, and I have asked several members of the committee, there was no study presented to the committee and there was no evidence other than anecdotal evidence.

The member for Burnaby-Kingsway and others can talk about a particular hate motivated crime that happened in Vancouver, Toronto or Halifax. We know these crimes take place. But how often do they take place? Does the government have that evidence? Does the minister have a study that indicates that 1,000, 1,500, 2,000 or 10,000 so-called hate motivated crimes are taking place? We keep statistics on all kinds of matters related to the criminal law. If so, is there evidence to suggest that judges have been unduly lenient in dealing with offenders who commit a crime motivated by hate? I would submit there is no evidence to suggest that judges are too lenient. Then why present the law?

The criminal law is not a piece of legislation to be amended and changed in order to be "politically correct" because certain groups in society have pressured effectively for an inclusion of something in the law. The criminal law deals with many matters. It is a serious law, not to be used by politicians to curry votes and support from groups within society.

The Globe and Mail goes on to say:

The Criminal Code is not a toy. Nor is it a showcase for the government's good intentions. It is the law of the land. Before the government makes any changes to the code it should show that there is a problem in the first place, and what is more, a problem that can be addressed by the law. Governments should make law only out of demonstrated need. First demonstrate, then legislate.

The Globe and Mail makes a very persuasive argument on why we do not need this section in the Criminal Code of Canada.

The Financial Post is not a homophobic newspaper. I do not believe it can be accused of being anti-homosexual or anti-gay. It carried an editorial dated May 27 entitled ``Cluttering up the Code'' from which I would like to quote:

So much for the punishment fitting the crime. According to C-41 it is not enough that a person is assaulted or robbed or killed. Now any relevant aggravating circumstances are to be considered when meting out the punishment. If you happen to be beaten up or murdered because you were in the wrong place at the wrong time, or because someone wanted to rob you, the court is told to give the offender a lighter sentence than it would to someone who assaulted or murdered because they hated the victim's religion.

In other words in an attempt to attack discrimination the law itself would discriminate. Furthermore, since the government has not produced evidence that the courts have been especially lenient on those who commit crimes motivated by hate, where is the need for such a provision? The bill says the fundamental purpose of sentencing is to contribute to the respect for the law. The section on sentencing does the opposite. It is motivated by politics, not by the principle of impartial justice.

For these reasons alone, I urge members of Parliament to reject this section of the bill. It is unnecessary. It is politically motivated. We are not debating here the issue of whether homosexuality is moral or immoral. That debate is yet to come.

[Criminal Code, June 13th, 1995]

Madam Speaker, I rise on a point of order. The hon. member for Burnaby-Kingsway purports to be opposed to hate yet he seems to want to propagate it. I would simply indicate that he is challenging the authority of the Chair. You have made your ruling and he persists in challenging your authority. I would ask that if he is not prepared to play by the rules-

[Criminal Code, June 13th, 1995]

I can understand that there are a lot of prisons in the member's riding and he might be somewhat sympathetic to that element in society.

There is a danger in this section passing an inconsistent system of criminal law. At the very least, the government should agree that any violent offence cannot be diverted out of the criminal justice system. That is discretion that this Parliament should not give to anybody. If one is alleged to have committed a violent offence, whether it is murder, rape, aggravated assault, that person should be prosecuted in a criminal court.

I do not want someone who assaults my children or rapes my neighbour's wife to be given the opportunity not to be prosecuted. That is unconstitutional. Every Canadian under the Constitution is entitled to the equal benefit and equal protection of the law.

I would submit that this section is unconstitutional. It is not in keeping with what I have been hearing for 11 years as a member of Parliament. We need effective laws in this country. What this does is further tip the balance in favour of those who choose a criminal lifestyle. That is wrong.

[Criminal Code, June 13th, 1995]

Madam Speaker, I was not in the House because I was trying to seek some clarification with respect to this concept of alternative measures. I would like to address my comments for the moment to this particular provision in Bill C-41.

As I understand it, a person can commit a murder, a person can commit a rape, a person can commit an aggravated assault, and under this provision that person may never in fact be prosecuted in a court of law.

The section reads: "Alternative measures may be used to deal with a person alleged to have committed an offence only if it is not inconsistent with the protection of society and the following conditions are met: (a) the measures are part of a program of alternative measures authorized by the Attorney General or the Attorney General's delegate".

That means that we in this Parliament dealing with federal law are saying that there are crimes, any crime in the Criminal Code, if the attorney general for any of the provinces in Canada decides that for example we are not going to prosecute rapists any longer-you may say this is far-fetched and it will never happen, but the fact is that this amendment would allow that to happen. A provincial government somewhere in this country might decide for whatever reason they are not going to prosecute rapes any more and instead rapists will heretofore be subject to alternative measures.

What are those alternative measures? We do not in this legislation describe what those alternative measures are, what crimes will be subject to those alternative measures. In fact it says any crime. We do not know. Does that mean that a rapist, someone who is alleged to have committed a rape, can for example be diverted out of the criminal justice system and into some alternative measures? What can those alternative measures be? We do not know. This bill does not define what alternative measures are. This bill leaves it up to the attorneys general of the provinces.

I am sorry, but I do not have faith in attorneys general in this province to prosecute or to deal with serious offenders. They could very well say, using my scenario, that alleged rapists will have to do some community work, will have to cut grass instead of serving time in prison, or they might have to work at a day care centre. That might sound outrageous, but this section is outrageous. It is inconsistent with the desire of Canadians from one coast to the other to have strict laws to deal with violent offenders.

I can understand if we used alternative measures for non-violent offences such as fraud, robbery, someone who steals food, milk or bread, someone who is not a threat to my children or to

my neighbour's children. However this is totally openended. Any offence is eligible for alternative measures.

In effect what this bill would do is have a checkerboard system of criminal law in this country. If the attorney general for the province of Alberta decides no to alternative measures, there are no alternative measures in the province of Alberta. Everyone will be prosecuted under the Criminal Code. If the province of Quebec decides yes, we love alternative measures, we are going to divert everyone to the alternative measures scenario, then all of a sudden someone who commits a serious crime in Alberta will serve time in a penitentiary but if someone commits a serious crime in the province of Quebec he will be cutting grass somewhere and sleeping at the local Howard Johnson.

Members might laugh, but let me tell them that under section 745 of the Criminal Code there there is some discretion to the various provinces. In the province of Quebec, almost all those applicants, all those convicted killers who were convicted of first degree murder and applied for their parole ineligibility to be reduced, almost all of them have been successful. The going rate for murder in the province of Quebec is closer to 15 years. In the province of Alberta, where the attorney general takes a different view of these matters, the going rate for first degree murder is 25 years.

Criminal law should be applicable and evenly applied across the country. Section 745 is a clear example of what happens when one allows provincial attorneys general discretion in prosecuting in a particular fashion. There is no doubt in my mind that if this section is passed without amendment there will be a checkerboard system of criminal law.

If the government is serious about alternative measures they will restrict it to non-indictable offences. The hon. parliamentary secretary laughs and shrugs it off. I can understand-

[Criminal Code, June 13th, 1995]

On a point of order, Madam Speaker, is there still an opportunity to speak to Motions 3 and 4, which I understand are grouped together?

[Firearms Act, June 12th, 1995]

Mr. Speaker, I rise on a point of order. Could you clarify whether we are also voting on Motion No. 227? If that is the case I should like to be recorded as being opposed to Motion No. 227.

[Firearms Act, June 12th, 1995]

Mr. Speaker, I would like the record to show that I am voting in favour of Motion No. 158.

[Firearms Act, June 12th, 1995]

I am content to deal with Motion No. 267 first but I would like someone to explain in 30 seconds what amendment 267 is all about.

[Firearms Act, June 12th, 1995]

Mr. Speaker, I understand you are requesting unanimous consent. I am simply indicating that members need to vote intelligently on these amendments. When bills are presented to the House there is an explanatory note. For those of us who did not sit at the justice committee or sit through the evidence this is the first opportunity for the House to consider 267 amendments. I am not asking that each and every amendment be dealt with in great detail but for a brief explanation as to what the effect of the amendment would be.

[Firearms Act, June 12th, 1995]

Mr. Speaker, I rise on a point of order. I note there are some 267 amendments. It would be helpful if we were to receive a brief explanation of what the purpose of each amendment is.