Pierrette Venne

[Electoral Boundaries Readjustmentact, 1995, June 20th, 1995]

Mr. Speaker, as I was absent for the first vote, I would like my vote to be recorded for the next ones with the Bloc Quebecois.

[Criminal Code, June 15th, 1995]

Mr. Speaker, I was saying that the former spouse is too often the victim of both physical and psychological abuse. When couples break up, the built-up tension too often degenerates into violence. The former spouse is a special case, because the abuser often blames his victim for the failure of the relationship.

With respect to spousal homicide, which is an extreme form of violence, the probability that a woman will be killed by her husband is nine times higher than the probability that she will be killed by a stranger. Separated spouses, however, are much more at risk.

In the case of couples living together at the time of the murder, four times more women than men are killed. This 4:1 ratio goes up to more than 10:1 for separated couples. These statistics are inescapable and alarming: for every man killed by his ex-wife, 10 times as many women are killed by their ex-husbands.

The results of this Canada-wide survey on spousal abuse, in which over 12,300 women participated, were published in March 1994. This survey gives a picture of spousal violence that is troubling, to say the least. Because violence against current or former wives is disturbing, we prefer to ignore it instead of facing reality. It is high time that this House sent a clear message to violent spouses, the vast majority of whom are men. The message to the judges looking at the circumstances surrounding violent crimes against spouses must be just as clear.

I am talking not only about physical abuse but also about psychological abuse, which produces lasting, detrimental effects. Put-downs and insults are as devastating a weapon as slaps and punches. They inflict deep wounds that never completely heal.

The national survey published last year was aimed at testing theories on the links between physical and psychological abuse. About a third of the women who were or had been married at the time of the survey said that their spouses or former spouses had been psychologically abusive. Fifty-nine per cent of former partners were considered psychologically abusive, compared with 17 per cent of current partners.

Although physical abuse does not necessarily go hand in hand with psychological abuse, both types were used in most cases. Three quarters of the women who described themselves as victims of physical or sexual abuse said that they were also victims of psychological abuse. Eighteen per cent of women not experiencing physical violence at the hands of their spouses said they were the victims of psychological violence.

The principle forms of violence described by the women surveyed were pushing, grabbing, shoving, followed by threats to hit, slapping, having objects thrown at them, being kicked, bitten and punched. A good number of women were also battered, sexually assaulted, strangled, hit with an object and threatened with a gun or a knife. Rarely was only one form of violence reported.

The Bloc Quebecois proposed an amendment that covered all these forms of violence. In fact, by defining assault as it is defined in section 265 of the Criminal Code, we have included the application of force against a spouse, the attempt and the threat to apply force. The definition applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party, causing bodily harm and aggravated sexual assault. Unfortunately, our amendment was not accepted.

Almost half of women victims of violence have been injured. The most frequent injuries were bruises, in 90 per cent of cases, followed by cuts, scratches, burns, and various degrees of fracture. Almost 10 per cent of injured women said they had suffered internal injuries and miscarried.

I would like to quote Mr. Justice Jean-Guy Boilard of the Superior Court of Quebec. When sentencing the accused Fouad Ghazal last Thursday in the district of Hull, the judge, speaking to the accused who had murdered his wife, said the following, and I quote: "Spousal violence is a repugnant crime that has become one of the major concerns of our society. It would be utopian to think we can eradicate it. However, the sentence must reflect society's reprobation of this crime".

I hope all members of the bench agree with Mr. Justice Boilard.

To get back to the sentencing bill, the debate, as I pointed out the day before yesterday, was distorted from the outset. Most speakers zeroed in on the expression "sexual orientation" which appears in clause 718.2 of the bill. This clause deals only with the circumstances the judge should consider at the time of sentencing. As I said before, this is not a new charter of rights.

There is no justification for the concern expressed by some members that an individual will be punished more severely. All forms of violence must be punished. If the victim is attacked as a member of an easily identifiable group or as an apparent member of such a group, this is clearly an aggravating circumstance and the punishment should be severe.

At the insistence of the Bloc Quebecois, clause 718.2 now contains two additional factors, so that national or ethnic origin as well as language are now part of the list.

We felt it was imperative to send a clear message to the courts to punish crimes motivated by prejudice based on language. A person has no right to abuse a francophone because he speaks French, and this applies to all language minorities in Canada. I hate violence in any form, and I particularly hate violence motivated by prejudice, the most damaging of all.

Violence against women is the most obvious example. I therefore support unreservedly a bill that identifies the gender-based bias of the aggressor as an extreme example of a morally reprehensible attitude. We have every right to disagree with some of the provisions of the bill, and we have the right to express our opinions. However, some opinions make me fear the worst.

Not so long ago, the debate centred on discrimination against Blacks and visible minorities in general. Bill C-41 is an indication that our society is moving in the right direction, towards civic responsibility and tolerance. Violence in any form must be condemned. The consequences of crimes motivated by hate are profound. There is not just one victim. There are many. Every member of these groups becomes a victim.

This is a situation that cannot be tolerated. We each have to choose the kind of society we want. And I have chosen to live in a society that condemns violence.

[Criminal Code, June 15th, 1995]

Mr. Speaker, talk about sentencing reform is nothing new. The consultation process that started 10 years ago has finally led to today's third reading debate on Bill C-41, which deals with sentencing. This outcome was preceded by acrimonious debate.

The statement of principle underlying the bill is a step in the right direction. The maintenance of a just, peaceful and safe society by imposing just sanctions, together with other crime prevention and law enforcement initiatives, fully deserves my support. In addition, innovative measures aimed at decriminalizing some minor infractions, alternatives to incarceration, and suspended conditional sentences will reduce prison overcrowding and focus sentencing on rehabilitation rather than incarceration.

That said, I think it is essential to stress that the bill will have a major impact not only on the accused before the court but also on the general public.

Sentencing is one of the most important steps in the criminal justice process. Contrary to what many people believe, most people charged with crimes do not go on trial. The vast majority of them plead guilty as charged. Their only experience of our criminal system is often limited to a brief appearance before the court for sentencing. Most charges laid are settled out of court as a result of plea bargaining. Without this process, the judicial system would clog up to such an extent that, the way things currently stand, it would cease to function to all practical purposes.

As a result, the accused pleads guilty, hoping that his lawyer will negotiate a reasonable sentence with the Crown. Any agreement reached between both parties is submitted to the judge. The judge is then free to approve or reject the suggestion made jointly by the defence and the Crown. The defense may also ask for a presentence report that the judge will take into consideration before handing down his sentence.

The public pays attention to two things: the verdict and the sentence. The majority are not concerned about the technical side of what lawyers do. They want to know whether or not an individual is guilty, and what the sentence is. The sentence does not just involve the accused, but the public in general. The appearance of justice, the setting of an example, clemency and the dissuasive effect of the sentence are all important aspects in the determination of the sentence.

Despite the importance of sentencing, the Criminal Code has never given any exhaustive direction to judges. They exercise complete discretion and have full powers as to the nature and the severity of a sentence. The applicable law in sentencing is written by judges and not by the legislator. This is the classic example of the judge-made law that is part of our Anglo-Saxon heritage.

Through their interpretation of the law and the moral authority they wield, judges help to shape and develop the fundamental values underpinning society. Unfortunately, and I will go on condemning it, women are chronically under-represented in the judiciary. Lynn Smith, the dean of the University of British Columbia's faculty of law laid out the problem clearly in an article entitled "A system that is changing".

It contains the following eloquent passage, and I quote: "The roots of the legal system were put down by men. They were developed in an era when women were not allowed to vote, to stand for office, to be lawyers or to sit on juries. The law was there to protect interests that men held important, that were consistent with the realities of their lives as men. Although the law may be said to take the situation of women into account, nonetheless an entirely masculine perspective underlies our legislation".

The majority of the approximately 1,400 judges handing out sentences are men. The overwhelming majority of federally appointed judges, those sitting in the provincial higher courts or in the Federal Court, are men. Of a total of 950 federal judges, only 134 are women. All come from a privileged socio-economic background. The accused appearing before them are rarely as well connected: they are not always men.

The majority of women who find themselves before the bench are unemployed, on welfare, or possibly working part time. Most judges are unfamiliar with the conditions in which the women appearing before them live. Ninety per cent of women serving a prison sentence have been found guilty of minor property offences, such as shoplifting. They are also sent to jail for non-payment of fines.

It is clear that women in the prison system are a particular clientele. They are not usually there for violent crimes, which brings me to one of the great weaknesses in this bill. Clause 718 identifies one of the main purposes of sentencing as the maintenance of a just, peaceful and safe society. This is a very worthy goal but may be difficult to achieve. And in order to achieve it, we will have to get rid of the gender and class bias of some of our judges. Our magistrates will need some very clear guidelines.

It is surprising that those who drafted the bill did not bother to consider the characteristics of the accused at the time of sentencing. In fact, except in the case of aggravating circumstances associated with crimes motivated by hate or involving abuse of trust, nowhere does Bill C-41 oblige the judge to consider the degree of indigence or the gender of the accused.

Women who come before the courts tend to be different as a group from male offenders, one factor being the type of offences women commit. Their behaviour is not the same and their goals are different as well.

If, at the time of sentencing, the judge makes no allowance for these differences, his decision will inevitably be unfair. Equity does not mean equal treatment. Two identical sentences for the same offences do not carry the same stigma for men and women.

Many women who have been in trouble with the police have already experienced very serious problems as a result of poverty, spousal abuse, family breakup and the fact that in most cases, women end up with the responsibility for a family.

Judges must be made aware of these factors. This problem will be solved when we have as many women as men on the benches of our courts of justice. It is up to the Minister of Justice to administer the remedy.

One of the cornerstones of the bill is the alternative measures for adult offenders. If the province provides for a system of alternative measures, instead of being prosecuted, the adult offender would be ordered to participate in a training program or authorized community services. The conditions and restrictions that apply to the alternative measures program proposed in the bill are almost identical to those in section 4 of the Young Offenders Act.

For instance, offenders will have to accept responsibility for the act or omission and fully and freely consent to participate in such a program. The Crown has full discretion to proceed with prosecution of the offence if it feels there is sufficient evidence and the interests of society so justify.

However, and as usual in the case of federal legislation, it will be up to the provinces to implement these alternative measures. In fact, it will be up to the attorney general of the province to set up a system of alternative measures. Provincial legislation from coast to coast does not necessarily guarantee uniform implementation across the country.

There is no provision for implementation in this bill. Because the federal government conveniently chooses to ignore the need for mechanisms to implement its own legislation, the onus will be on the provinces to implement the system, and they will have to deal with all the start up problems.

This kind of implementation will create provincial and territorial disparities which may cause other provisions of the bill as well as the bill's philosophy to be ignored. In fact, how can we expect to have sentencing parity across the country, if some regions have no alternative sentencing system or are unable to put one in place? Someone who commits an offence in a region where there is no alternative sentencing will not be able to use it, and this part of the bill then becomes ineffective.

Offenders who happen to be in the wrong province will have different sentences. For similar offences committed in similar circumstances, some people will get different sentences, which goes against the principle set forth in clause 718.2.

The range of sentencing available to the judge includes the suspended sentence. Under this system, it is possible to grant individuals a stay of sentence and to allow them to do their time within the community, provided they respect the conditions imposed by the court. Such a stay will only be available to individuals declared guilty of a crime for which no minimum prison sentence is set and sentenced to less than two years.

Suspended sentences only confuse matters more. Judges already have the discretion to suspend the passing of a sentence and to put someone on probation for a specific period. A suspended sentence will have the same effect as suspending the passing of a sentence and putting someone on probation. Same difference. The Minister of Justice would have been better advised not to waste his time reinventing the wheel.

Bill C-41 does, however, innovate in the area of victims' rights. Under clause 722, the judge is obligated to take into account the victim impact statement at the sentencing hearing stage. Hearsay will be acceptable under oath, and, if the victim is deceased or is unable to make a declaration, his or her spouse, relative or anyone who has taken responsibility for the person, may make a statement for the victim.

This important development has made up for all the times that I denounced the minor role that the victim played in legal proceedings until I was blue in the face. But, this should only be the beginning.

Victims must take their rightful place in the courts and not just be regarded as crown witnesses. The Daviault case is a sad example of the foibles of our system. Henri Daviault was recently acquitted, for lack of evidence. The case made quite a stir and prompted the Minister of Justice to table his bill on drunk defence. But the victim died in 1993. Despite the order for a retrial, the crown no longer had a witness and the judge was obliged to acquit Daviault.

Was justice served? The victim cannot give testimony from the grave and the victim's statement cannot be used as evidence now. Daviault is now a free man and we will never know what really happened. The victims of criminal acts must be included in the criminal court proceedings. They should no longer simply be crown witnesses. They should be entitled to representation by counsel and be able to cross-examine the accused, if the individual decides to testify. Victims should be able to call their own witnesses.

The rules on hearsay evidence in a trial should be relaxed in favour of the victim. In short, the system should not further traumatize the victim, who has already been subjected to the violence. Twenty years after the first shelters were opened in Quebec, violence continues to be perpetrated against women. Our society's biggest challenge is to put an end to this scourge.

This violence is not only physical; it can be psychological, emotional, economic and social as well. Spousal abuse is another scourge that must absolutely be stopped. Although the reason is obvious, the problem remains. Most of the members of this House continue to turn a deaf ear, unfortunately. They simply reflect the attitude of a society that indulges spousal violence.

Obviously, most say they are sensitive to violence and do not approve of deviant behaviour. A number also say that spousal violence is reprehensible, but look for an excuse for the disturbing attitude of the aggressor. He was drunk, for example. This approach fosters social acceptance of spousal violence. There are always two sides to the coin in our mind. We try to understand the aggressor and we blame the victim. The implication is, generally, that a man has reasons for abusing his wife, and that the victim's reaction does not meet our expectations.

In criminal law, when the courts have to deal with spousal violence, the sentence is too often lenient when the aggressor is found guilty. And for good reason. The pre-sentence report, which significantly affects the judge's decision, contains a distorted analysis of the problem. The report is limited primarily to analyzing the personality or the history of the aggressor. With this sort of analysis, the system is playing the aggressor's game.

The individual is relieved of responsibility, and the sentences such behaviour deserves are avoided. I contend, therefore, that, in all cases of spousal violence, however serious, the fact that the victim is a spouse or a former spouse should be considered an aggravating circumstance thus requiring a stiffer sentence. Former spouses are all too often the victim of both physical and psychological aggression.

Mr. Speaker, I realize you must intervene at 4.00 p.m. I will therefore turn the floor over to you and perhaps continue afterward.

[Criminal Code, June 14th, 1995]

moved:

Motion No. 21

That Bill C-41, in Clause 6, be amended by a ) replacing line 9, on page 44, with the following:

"743.6 Notwithstanding subsection"; and b ) by deleting lines 27 to 32, on page 44.

[Criminal Code, June 14th, 1995]

moved:

Motion No. 18

That Bill C-41, in Clause 6, be amended by replacing line 39, on page 16, with the following:

"amined that substance and stating the result of".

Motion No. 20

That Bill C-41, in Clause 6, be amended in the French version, by replacing line 40, on page 33, with the following:

"garde d'enfant auxquels s'expose une".

[Criminal Code, June 13th, 1995]

Madam Speaker, the motions on clause 718.2 of Bill C-41 represent the majority of the motions to amend tabled at report stage. Most deal with the question of whether or not the expression "sexual orientation" should be included in the provisions which relate to the aggravating circumstances to be considered when a sentence is imposed.

Motion No. 5, tabled by the hon. member for Crowfoot, is the most drastic one, since it proposes to completely eliminate

clause 718.2 in the bill. In so doing, the Reform Party would render the legislation meaningless, since it would abolish the basic principles and objectives of sentencing.

The principles stated in clause 718, which underlie the bill, are a step in the right direction. Indeed, we can only support a measure which seeks to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing appropriate sanctions.

Moreover, the alternative measures provided in clause 717 regarding some offenders, that is the penalties other than incarceration and probation, are innovative measures which will result in fewer offenders being sent to jail, while also putting the emphasis on rehabilitation rather than incarceration.

Some motions, including those of the hon. member for Scarborough West, seek to introduce a comprehensive definition of the expression "sexual orientation" in clause 718.2 of the bill. The member actually managed to table several motions to amend which are essentially variations on the same theme, in the hope that one of them will somehow get through.

The debate on the real issues of Bill C-41 was sidetracked from the very beginning. Indeed, since the legislation was tabled, the debate has focused on the sensitive issue of homosexual rights. Under aggravating circumstances, the bill provides a list of prejudices motivating hate crimes, including the sexual orientation of the victim.

The judge must consider a hate motivated crime as an aggravating circumstance at the time of sentencing. The debate has been sidetracked both by the defenders of homosexuals' right to protection and by the extreme right that wants the bill's provision regarding aggravating circumstances to be dropped. I have received thousands of letters asking me to vote against Bill C-41 because it contains the phrase "sexual orientation". Our offices were flooded with these form letters. They merely reflected the opinion of a ill-informed minority.

Those who signed these letters actually wanted us to scrap a 75 page bill, containing a hundred clauses and representing a complete reform of that part of the Criminal Code that deals with sentencing, because it contained two words too many. Let us keep in mind that Bill C-41 does not create new rights. It is a sentencing bill, and therefore sets out parameters by which judges must be guided in arriving at sentences. Clause 718.2 in particular concerns only an accused found guilty and the criteria that apply to his sentence.

It is not the purpose of this clause to create rights for the groups listed therein. The rights of individuals are protected under the Constitution and other legislation on the protection of human rights. Bill C-41 is not a new charter of rights and freedoms, as several interested groups would have us believe. When a bill contains the term "sexual orientation", the meaning of the term raises many questions. What does it really mean? How should its meaning be interpreted?

In the Egan case, the federal court seems to indicate that a sexual tendency or orientation can be heterosexual, homosexual or bisexual. This case made a challenge under section 15 of the Canadian Charter of Rights and Freedoms. The court concluded that, although the Supreme Court has never issued an opinion on the issue, the fact that sexual tendencies can be invoked as motives constituting discrimination such as those prohibited under subsection 15(1) had become a matter of settled law.

On June 30, 1993, a little while after the Egan decision, the Supreme Court stated in the Ward decision that sexual orientation is an innate or unchangeable characteristic. This case involved discrimination against refugees and the protection of refugees. The Supreme Court accepted as a category persons who fear persecution because of gender, linguistic backgrounds and sexual orientation.

I would like to mention in passing that the Bloc Quebecois proposed an amendment regarding the linguistic traits of victims in committee, which was accepted. This amendment is in line with the position taken by the Supreme Court in the Ward case. But, you might ask, should we not clearly define the term "sexual orientation"? Since political correctness has come into style, the names of several minority groups have changed considerably.

The blind have become the visually impaired; the deaf, the hearing impaired; the mentally ill are now mentally handicapped.

Since language changes constantly, the designation of homosexuals has changed as well. In the 19th century, this phenomenon was referred to as sexual inversion. In the 20th century, this term was replaced by the word homosexuality. Subsequently, we had the terms gay and lesbian. Not so long ago, people talked about sexual preference. Of course, the gay community soon dropped this term because it indicated a choice or characteristic acquired by the individual and not an innate characteristic.

Scientists are now trying to determine whether homosexuality is not only innate but genetically determined. In a scenario that may not be that far down the road, we may have individuals with male or female genetic characteristics, plus homosexual genetic characteristics that would influence the individual's behaviour and thus determine his or her future sexual orientation.

Some people maintain this is a nightmare scenario, especially those who flooded the fax machines on Parliament Hill with strong protests against Bill C-41. The mere term sexual orientation caused a wave of panic. Opponents of this legislation

simply want to throw out an entire bill on sentencing because it supposedly gives more rights to homosexuals, which is patently untrue. Crimes motivated by hate or prejudice have a profound impact on the victim. They differ from any other kind of crime. The victim, attacked because of the colour of his or her skin, because of his or her religion or because she is a woman, suffers far more than someone whose wallet is stolen. That is what clause 718.2 of the bill is all about.

I will not support Motions Nos. 5 to 17, inclusive, except, of course, for Motions Nos. 9 and 15.

[Criminal Code, June 13th, 1995]

Very well.

[Criminal Code, June 13th, 1995]

Pardon me, Madam Speaker, but let me explain before the hon. member goes any further with his remarks. I do not know if I should discuss this with you right now, but I have a problem. As I understand it, based on the Speaker's decision, my Motion No. 4 will be voted on at the same time as Motion No. 3, which deals with a completely different subject. Mine is about the French language, and the hon. member's about alternative measures. There really is no connection.

[Criminal Code, June 13th, 1995]

moved:

Motion No. 15

That Bill C-41, in Clause 6, be amended in the French version, by replacing line 40, on page 33, with the following:

"garde d'enfant auxquels s'expose une".

[Criminal Code, June 13th, 1995]

moved:

Motion No. 9

That Bill C-41, in Clause 6, be amended in the English version, by replacing line 30, on page 8, with the following:

"vated by prejudice or hate based on".