Mary Clancy

[Impaired Driving, December 2nd, 1996]

Mr. Speaker, the hon. member keeps talking about gutter politics. I do not understand why my discussion of criminal law provisions should be called gutter politics.

Apparently there have been some differences on the amendments contained in Bill C-17. These amendments are aimed at ensuring that periods where the convicted drinking driver is imprisoned will not be deducted from the period of the prohibition from driving. The approach of various provinces and territories has been different in this matter and the amendments will clarify the approach to be taken.

The penalties in the drinking and driving provisions of the Criminal Code represent a measured approach to the drinking and driving crimes. They are serious penalties. We should be very careful not to confuse challenges in investigating drinking and driving crimes or the heavy onus on the crown in proving drinking and driving crimes beyond a reasonable doubt in order to obtain a conviction with the sufficiency of the penalties we presently have for these crimes.

We should remember that provinces may also use their legislative powers in areas relating to driver licensing and suspension and in the area of highway safety to address the problem of drinking and driving. For example, some provinces have chosen to use a lower blood alcohol concentration limit with regard to the suspension of licences than the criminal law might be able to justify using when creating a criminal offence. Also, some provinces have chosen to use administrative roadside suspensions of driving privileges for drinking drivers which take effect immediately. Such suspensions are not criminal law penalties. Under fundamental principles of criminal law, criminal penalties can follow only upon a conviction for a crime and cannot proceed a conviction.

This should remind us that the criminal justice system and the criminal law, including penalties, are parts of a combined effort to address the problem of impaired driving and driving while over 80. The concerted effort of governments, educators and community groups against drinking and driving can be traced to the implementation of the 1985 amendments to the Criminal Code. In my view the Criminal Code penalties are already serious penalties, containing deterrent value. To increase the criminal penalties would not at this time mean that people would be more deterred from drinking and driving than they are currently with criminal law penalties.

Thankfully, over the years there have been increasing efforts by provincial governments in the area of provincial highway safety legislation and licensing which have contributed toward a solution to drinking and driving crimes. Similarly, education, which really is the true answer, and example in the home contribute to the solution. The alcoholic beverage and hospitality industries have also taken a role in reducing drinking and driving problems.

In my view the present Criminal Code penalty along with the amendments that relate to prohibition in Bill C-17 do provide-

[Impaired Driving, December 2nd, 1996]

Mr. Speaker, I am going to stop briefly. The hon. member from British Columbia says it is fascinating. I know it is fascinating. The point is the hon. member understands what I am getting at. However, there are a number of other hon. members who do not. With the best of intentions, they do not understand how the law is formed, how the law is practised or how the law is administered. I do know that the hon. member does understand that. Therefore I appreciate his response that these things, while somewhat dry, are indeed fascinating.

This prohibition, as I mentioned, is a criminal law penalty and is separate from any provincial or territorial driver's licence suspension which might be extremely severe as well, depending on the province, and rightly so.

I should note that we have before the House-

[Impaired Driving, December 2nd, 1996]

Mr. Speaker, there can be no dispute about the potential for serious harm that impaired driving poses. Many of us, tragically, as was pointed out by members on the other side, know intimately the suffering that impaired drivers can and do cause. Our first reaction because of this as legislators, and a very understandable one, is to consider changing the penalties in the Criminal Code.

We should, however, clearly understand what the criminal law does now about impaired driving. We need to do this in order to ensure that we are proceeding wisely and not simply setting out upon a course, however well motivated, that will turn into a journey that does not lead us toward meaningful change. Only after such an understanding is reached can we then wisely consider whether there are appropriate changes that ought to be made to the Criminal Code.

Driving is a legal behaviour, given the appropriate provincial or territorial licence. Drinking alcohol is also a legal adult behaviour. Clearly one may engage in either behaviour separately and not offend against the Criminal Code. What the criminal law does prohibit is driving when one's ability to do so is impaired by alcohol. The code also prohibits driving with a concentration of alcohol in the blood that is greater than 80 milligrams of alcohol in 100 millilitres of blood. This is regardless of whether the person shows actual signs of impairment or not.

I understand that scientists have indicated that the significance of alcohol as a discreet factor influencing driving behaviour becomes demonstrable only above the level of 80 milligrams of alcohol. Therefore the present over 80 limit is one that can withstand scrutiny by the courts. It respects fundamental principles of criminal law relating to culpability being a limit that rests securely upon a foundation of blame worthiness which is demonstrable by study results that are statistically significant.

I want to turn to the penalties associated with the criminal offences that are committed by persons who consume alcohol and then operate a vehicle. Where the crown prosecutor can bring evidence proving that the drinking driver's pattern of driving was so bad as to constitute criminal negligence there is a maximum penalty of life imprisonment where the driver caused a death. Clearly this is the most serious maximum penalty available. If the criminally negligent driver caused bodily harm, the maximum penalty is 10 years imprisonment. Where driving behaviour is involved the proof which the crown prosecutor must offer in court for the offence of criminal negligence is a proof of very high divergence from normal driving behaviour.

The Code also has an offence of dangerous driving causing death. The level of behaviour required for this offence is less divergence from normal behaviour than the behaviour contemplated for the criminal negligence offence. The maximum penalty for dangerous driving causing death is 14 years imprisonment. For the offence of dangerous driving causing bodily harm the maximum penalty is 10 years imprisonment, the same as for criminal negligence causing bodily harm.

In 1985 Parliament amended the code to introduce the offence of impaired driving causing death. The level of proof of divergent driving behaviour or an impaired ability to operate a vehicle which the crown prosecutor must offer in court is far lower than would be the case in criminal negligence cases. This offence carries a

maximum penalty of 14 years imprisonment, the same penalty as the offence of dangerous driving causing death.

Parliament also introduced the offence of impaired driving causing bodily harm in 1985. This offence carries a maximum penalty of 10 years imprisonment, the same as the offence of criminal negligence causing bodily harm and dangerous driving causing bodily harm.

For impaired driving and driving while over 80 where no death or bodily harm is involved there are various minimum penalties available. For a first offence the minimum penalty is a fine of $300. For a second offence the minimum penalty is 14 days imprisonment. For a subsequent offence the minimum penalty is 90 days imprisonment.

Impaired driving and driving while over 80 can be prosecuted by summary conviction or by indictment. Where prosecuted by summary conviction procedure, the maximum penalty is six months imprisonment. Where prosecuted by indictment, the maximum penalty is five years imprisonment. The crown prosecutor's choice to select procedure by indictment over summary conviction procedure would be influenced by such matters as the circumstances of the offence and by the prior record of the drinking driver.

In addition to the minimum and maximum penalties there is a prohibition from driving anywhere in Canada which a judge is required to impose under the Criminal Code. The maximum prohibition from driving anywhere in Canada is three years. For a first offence the minimum period is three months. For a second offence the minimum period is six months. For a subsequent offence the minimum period is one year.

This prohibition period is a criminal law penalty and is separate from any provincial or territorial driver's licence suspension that might follow upon a Criminal Code conviction for impaired driving or for driving while over 80.

I should note that we have before the House some proposed amendments-

[Impaired Driving, December 2nd, 1996]

Mr. Speaker, on a point of order, I would ask that the hon. member not anticipate my remarks.

[Human Reproductive And Genetic Technologies Act, October 31st, 1996]

Madam Speaker, indeed I could respond. With regard to the first part of the hon. member's question on manipulation génétique and the phrase in English, I am not an expert in the French language. If it has a different meaning I can only suggest to the hon. member that this is something that should be brought forward at the committee stage of the bill.

I am sure that the people at the committee, the clerk of the committee, the researchers, the people responsible in the Translation office, will correct those words. That is a housekeeping kind of correction and I do not think it is incumbent on me in my knowledge of the bill to make any kind of response. I suggest the hon. member bring it to the committee.

On some of the other questions-goodness knows I am a lawyer and I am used to splitting hairs-but on May 4, 1994 the member for Drummond complained in the House about the government's slowness to act on this issue. I can only suggest with regard to some of the questions that she is putting in a hair splitting manner-I do not know if she shares my profession or not, if she does not she should because she is good at it. She said such an action would have major impact on ethics and research and that we were too slow.

These kinds of questions do not help to speed the delivery of the bill. I would be delighted to address any questions the member might have on the substance of the bill. With questions that really relate to terminology, the short title and definition I think she knows there is a legislative branch and people in committees that can solve these problems. I would hope that the hon. member might have questions with more substance to bring to the debate.

[Human Reproductive And Genetic Technologies Act, October 31st, 1996]

Madam Speaker, I am pleased to debate Bill C-47, the new reproductive and genetic technologies act.

Many people in Canada today live with the knowledge that they are at risk of passing on a serious sex related disorder to their children. They have witnessed at close range the devastation that these disorders, for example hemophilia and Duchenne muscular dystrophy, can wreak on those who suffer from them and on their families and friends. For many the only alternative to the risk of

passing on the disorder that is acceptable to them is not to have children at all. That is a very high price to pay.

The development and availability of prenatal diagnosis and other technologies which permit couples to find out the sex of an embryo or fetus have meant that they can for the first time make informed decisions about whether and under what circumstances to have children.

There are some people, however, who have strong preferences for children of one sex, not for health reasons but solely for personal or cultural reasons. The same technology that provides such profound assistance to couples who risk passing on genetic diseases, the families who are facing potential tragedies, can also be used to satisfy the desires of people who for varying reasons strongly want a boy or a girl.

Using technology to try to predetermine the sex of an embryo or, even worse, using prenatal diagnosis simply to choose the sex of a child is a practice which I believe is abhorrent to the majority of Canadians.

The government examined the issue carefully and concluded that there are serious grounds upon which to prohibit sex selection for non-medical reasons. The practice puts vulnerable people at risk, particularly children and women. It contravenes our country's commitment to equality between the sexes. It is an inappropriate use of medical resources.

For these reasons Bill C-47 makes it illegal to use technology to try to influence the sex of an embryo or to determine the sex of a fetus.

When we talk about sex selection we are talking about three different uses of technology, each with the same goal. The first method of sex selection takes place before conception. An egg, fertilized with X bearing sperm, leads to the birth of a girl. One fertilized with Y bearing sperm leads to the birth of a boy. It follows that if the X can be separated from the Y the likelihood of having a child of the desired sex can be increased. Once separation has occurred the gender of a child can be predetermined.

This method of sex selection is not always effective, but there is enough of a market for it that two private clinics have been opened in Canada, as well as clinics in the United States, the United Kingdom and elsewhere.

The second method of sex selection has arisen from the practice of in vitro fertilization. IVF results in the creation of embryos outside the body, usually more embryos than can safely be transferred back to the woman's body. Some criteria are necessary to decide which embryos should be transferred to the womb. A technique called pre-implantation diagnosis involves removing several cells from an embryo while it is outside the body and examining them for the presence of chromosomal or genetic disorders. Embryos with any disorders obviously would not be implanted.

The pre-implantation diagnosis can also be used to determine the sex of the embryo. Those who have strong preferences for the sex of their child can arrange for the embryos of the desired sex to be transferred back to the woman's body. The first two methods are used before pregnancy has been established.

The third method is used much later in the development of the fetus. Prenatal diagnosis, usually amniocentesis or ultrasound, can be used to determine the sex of a fetus.

Protecting vulnerable members of society including children, respecting the Canadian commitment to sexual equality and ensuring that medical resources are used appropriately are the principles underpinning the prohibition on sex selection for non-medical reasons. Sex selection renders children vulnerable to a range of harm. The impact of sex selection on children's emotional well-being can be profound. It is not he alone who bears the burden imposed by sex selection. Siblings can also be harmed by the belief that they are not the right sex and that they are not as deserving of their parents' care and love. Children's self-esteem and sense of self-worth are fragile. The knowledge that their parents prefer a child of the opposite sex can do untold damage and the effects can last a lifetime.

Women can also be made vulnerable by the use of sex selection technology. Some women, particularly those from cultures where male children are more highly valued, have been subjected to pressure to use sex selection techniques to ensure they give birth to sons. This pressure can take the form of threats of marital breakup and violence. We are not as far removed as we perhaps thought from the days of Henry VIII.

Women representing minority communities have made great efforts to resist pressures for sex selection within their communities and to promote the wider adoption of fundamental values such as sexual equality.

The government does not want to undermine or compromise its efforts. Respect for cultural differences cannot be used to justify coercion. Countries where preference for male children is strong have seen a skewed birth ratio since the advent of prenatal diagnosis with many more males born than the normal birth ratio of about 51.5 males for every 48.5 females.

There is little evidence that the availability of sex selection for non-medical reasons could have as significant an impact in Canada. However, the consequences of even a relatively small change in the ratio of males to females are not known. In the absence of this information it would be foolhardy to risk tampering with ratios that have developed over thousands of years of human existence to allow for the continuation of our species.

For those reasons sex selection is sex discrimination. Society should not allow technology to be used to promote some arbitrary standard of the ideal family as consisting of both sons and daughters.

Sex selection techniques involve the use of limited health care resources. Except for sex related genetic disorders they are not medically necessary services. They do not treat or avoid disease. Nor do they promote human health.

People in this country view their health care system as one of the defining elements of being Canadian. To squander such a precious resource in ways that are ethically questionable would be wrong. The government is acting to ensure this does not happen.

After much consideration and consultation with stakeholder groups, the government has come to the conclusion that sex selection is so unacceptable to Canadian values and to the health and well-being of Canadian children that it cannot be provided.

Sex selection offends notions of sexual equality and of protection for the vulnerable. It has the potential to harm vulnerable women and children. It could have unknown impact on population health in the future should a skewed sex ratio be the result. It is an inappropriate use of our finite health care resources.

For all these reasons the government is prohibiting sex selection for non-medical reasons through the new reproductive and genetic technologies act. I am pleased to speak in support of the bill.

[Committee Of The Whole, October 28th, 1996]

Well done.

[Committee Of The Whole, October 28th, 1996]

Oh, yea. How come you never agreed to do it, Grant or Jay or whatever your name is.

[Divorce Act, October 1st, 1996]

Mr. Speaker, I am delighted to have been asked this question. I know my hon. friend asks it in the best of faith and I will answer very seriously.

Of course the optimum, the ideal for a child is to have two loving parents. I look at my own experience. The first seven years of my life were as idyllic as any child could have, and then my father died. It was a tragedy no one could have foreseen. My mother carried on in an admirable way. I was very lucky and grew up in a

very loving home. The wonderful creature you see before you is a product of that.

One of the things my mother used to say to me at times when the loss of my father became a great burden was: "You know Mary, there are many worse things that could happen to you than having your father die". That is very true. I think the hon. member knows that as well.

It would be wonderful if we could legislate two loving parents for every child. It would be possibly the greatest thing we could do, but we know we cannot do that. We know there are parents who neglect their children; there are parents who abuse their children; there are parents who behave in the most ghastly and horrible ways to their children, betraying the love and the trust in ways that make legislators like us, all Canadians and all people of goodwill on this earth cry out for justice.

I said earlier in my comments that there are things legislators can do and there are things we cannot do. We cannot legislate two loving parents for every child. We can only attempt to make the situation as good as possible.

To get to the technical question of access, it is in the Divorce Act. I am not sure what the hon. member wants to do with it. If he is referring to those who have standing to apply for access, that is another question, but access is dealt with in the Divorce Act. If he is referring to the private members' bill of the hon. member for Mission-Coquitlam, I already said that I support her spirit and the intent. I do not happen to support the particular mode she took to implement it.

[Divorce Act, October 1st, 1996]

Mr. Speaker, I want to thank the hon. member for Quebec for her intervention and for her comments. In this particular case I really do not want to sound patronizing. Let me begin by making an obvious statement. I am not familiar with the specific laws within the province of Quebec to which she refers. I am however very familiar with the juxtaposition, if you will, of federal and provincial law in this area.

The fact is it relates to some degree to what I said in my closing remarks about jurisdiction and this may have been the translation because I was listening to the translation. The translator used the word allow. The hon. member, although not a lawyer, knows it is not a question of the federal government allowing the provincial government. These are clearly defined areas of jurisdiction, one within the provincial area and one within the federal area.

The Divorce Act is within the federal jurisdiction and is really the only area per se whereby the federal government gets involved in the legal ramifications of marriage breakdown. There are other areas in which marriages are terminated not by divorce which are provincial.

I can only again say to the hon. member it is not at all a question of decentralization. Indeed I remember some years ago at a constitutional conference with federal and provincial members, including at the time the late Premier Lévesque, who was willing to agree to throw all family law to the provinces. This engendered a huge and negative reaction from bar societies and lawyers right across the country, including lawyers from the province of Quebec, some of whom may even be members of the Bloc or the PQ.

To be quite serious, the guidelines, and as I said, I am not familiar with the Quebec guidelines per se but I imagine they cannot be all that different from what may not be solid guidelines in other provinces, but the traditions, those habits or areas that define mediation and pretrial settlements in divorce and marriage breakdown. Most judges in Quebec and in the other provinces of Canada attempt to get as best a handle on the matter and they also attempt-and this is the phrase I brought up before-to consider the best interests of the child.

I do not think there is anything in the federal guidelines that will unduly hamper anything in the provincial guidelines. The federal guidelines are good guidelines. They reflect, in my estimation and in my knowledge of what is happening in other provinces, much the same ideas, much the same theories, much the same goals and aims.

If there is something under the civil code in Quebec that is utterly at war with the guidelines at the federal level, I would personally be very surprised and I would imagine that the Parliamentary Secretary to the Minister of Justice would be interested in knowing what those were and perhaps looking at them. But it is most unlikely that these would in actuality conflict.