Gordon Kirkby

[Young Offenders Act, May 17th, 1996]

Mr. Speaker, as I have indicated on a number of occasions, the justice committee is looking at the issue. The Minister of Justice has asked the committee to look at this very specific issue.

After listening to Canadians and stakeholders within the justice system from coast to coast, the committee will bring forward a report. When the government acts on the report we hope the hon. member will support our actions.

[Young Offenders Act, May 17th, 1996]

Mr. Speaker, I reiterate that the justice committee will be making recommendations on this very specific point.

No matter at what age the line is drawn, cases will always appear that would suggest the line should be drawn somewhere else. As all the evidence and studies indicate, there needs to be more action taken by the provinces, communities and individuals across the country to assist young people before they get into trouble with the criminal justice system. An ounce of prevention is certainly worth a pound of cure.

[Young Offenders Act, May 17th, 1996]

Mr. Speaker, as the hon. member is aware, the federal government has already enacted changes to the Young Offenders Act to stiffen up the penalties for the most serious crimes.

As the hon. member is also aware, the Minister of Justice has asked the justice committee to go across the country and gather input specifically looking at further changes to the Young Offenders Act. Very specifically, the minister has asked that the committee look at the age at which a young person could be made subject to the act. The committee will be reporting and we will be responding to that report.

[Supply, May 16th, 1996]

Mr. Speaker, perhaps the hon. member would be better placed to answer that question. As I have indicated, we on this side of the House place our faith in democracy, democratic principles, the rule of law and the application of our courts. We are sure we will be able to convince all people they should stay in Canada and that ultimately we will win.

[Supply, May 16th, 1996]

Mr. Speaker, I thank the hon. member for his question. As I indicated many times in my speech, it is the government's stated intention and we will carry through with that intention in all times, in all places and in all circumstances to obey and adhere to the rule of law.

The hon. member referred to a court case. The actions of the federal government with respect to that court case were simply in response to the actions taken by the Government of Quebec, taking what has been viewed as a rather extraordinary position that the rule of law, the Constitution of Canada, the courts of the nation do not have any say or any impact on the unilateral declaration of independence.

It is out of a desire to provide information to the court, to assist the court and in response to the actions taken by the Government of Quebec that the federal government is involved at all in this litigation.

Why do we always talk about things that drive us apart and emphasize differences? When we look across this great nation what are the things that tie us together? Right across the nation we believe in tolerance. Right across the nation we believe in working together. Right across the nation we believe in generosity and helping those who cannot help themselves. These are the fundamental principles that underlie our Canadian heritage, our Canadian citizenship. These are the values that unite us.

Let us talk about the things that unite us and bring us together instead of that which divides and we will find that when we can truly bring to the fore these values in a concrete fashion not only will it be good for the country in human terms, it will be good for the country in economic terms as well.

[Supply, May 16th, 1996]

Mr. Speaker, I will be splitting my time with the hon. member for Nunatsiaq.

I welcome the opportunity to remind the House of the great strength and flexibility of Canada's constitutional structure and justice system, and the primacy of the rule of law, of democracy in this great country of ours. Too often in the debate about the future of Canada, the constitutional and legal foundations of our country are characterized as irrelevant, ineffective or to be discarded.

This country's Constitution and justice system form the bedrock of our society. They are powerful vehicles for preserving the values that underlie life in a democratic society. They are in large part what makes Canada the much admired country that it is. They were built by generations of Canadians, including Quebecers. Our Constitution and justice system are not without their legitimate critics, but we should consider the motivation of those proposing this motion.

Too often we hear criticisms of a system that has served Canadians well for over a century and a quarter, a system that has made Canada's justice system among the most admired in the world. Too often we hear the defamation of a constitutional framework and a modus vivendi within that framework that has made us the envy of the world.

We must not be seduced by too clever rhetoric, surreal perceptions of this country. We must not ignore the reality of how well this country does, in fact, work. We must not ignore how well this country has served Quebecers, whose interests the Bloc Quebecois professes to represent.

It is essential for all Canadians, those in every province and territory, to appreciate the strength of the values that underlie our Constitution and justice system.

Have Canadians from whatever corner of this land done so badly by our constitutional principles, by our justice system, by our commitment to freedom and the rule of law and by our much admired ability to compromise to serve the interests of all Canadians? The answer in every case is clearly no.

Canadians are the beneficiaries of one of the most egalitarian justice systems in the world, and all this in a country that is among the most prosperous and peaceful in the world. In a world beset by economic turmoil and violence, should we not consider ourselves among the very fortunate, despite the musings of the members of the official opposition?

Our political structure and justice system have not been imposed on Canadians. They are a product of continual debate and well-intentioned compromise. Decades of effort by Canadians from all walks of life, be they elected representatives, public servants, members of interest groups or ordinary Canadians, have produced a confederation that serves Canada well today and will continue to do so in the future.

Those who participated in this process of building the underpinnings of Canadian society have strived to make our systems workable and flexible. All have fought to establish the democratic freedoms and human rights that we now take for granted. Quebecers have been at the fore of the many legal and political advances that have shaped this country. They too have built this country and its institutions. Now members of the opposition would have us believe that these institutions, the development of which so strongly was influenced by the minds and souls of Quebecers, come from outside or do not serve them.

Canada is populated by diverse cultures, by diverse groups, yet our Constitution serves them all. It is not a prison preventing the realization of the aspirations of Canadians. It is our home. Our Constitution is a flexible vehicle that permits the goals of all Canadians to be accommodated. It is a vehicle that allows the values so important to the many cultures within Canada to be respected and maintained.

What are the underlying values in Canada's Constitution and its justice system? Certainly, foremost among these values is the preservation of freedom and respect for human dignity. Those who created Canada shared a fundamental commitment to freedom, representative democracy and the rule of law. This commitment not only laid the basis for the Constitution of 1867, but set the direction for its continuing evolution.

Canada is also a peaceable society. Surely this is one of our most enduring characteristics. Canada was built out of accommodation, not revolution. It endures through the same process today.

Our legal system is built on the foundation of the rule of law. We have a strong an independent judiciary, one that reflects the character of our nation. Three of the nine judges of the Supreme Court of Canada come from Quebec. No other province has such a guarantee. As the President of the Treasury Board said so eloquently in the House in December 1994, the soul of Quebec will

continue to influence and define Canada as a country for a long time to come through its impact on the Supreme Court of Canada.

Thus Quebec not only continues to influence the direction of the supreme court, but our highest court itself is the product of a society based on the rule of law and respect for individual rights. We are blessed by a trusted judiciary that permits us to resolve our disputes in a civilized, lawful manner. All this we accomplish under the fundamental notion of the rule of law.

As I stated earlier, Canada's governments and its justice system must conform to the fundamental requirements of the charter of rights, another reflection of our respect for the rule of law. Our charter provides fundamental freedoms, the right to freedom of expression, freedom of peaceable assembly and freedom of association among them. It asserts the democratic rights of all our citizens. It protects accused persons in their interactions with the state through safeguards on arrest, detention and interrogation. It ensures that criminal proceedings are carried out in a manner which respects the rights of the accused.

The charter provides equality before and under the law and affirms French and English as the official languages of the country. Never forget the Supreme Court of Canada required Manitoba to ensure its laws were written in both official languages in accordance with the Constitution. New Brunswick has enshrined similar rights. Let us not forget the Canadian model of federalism which has brought such strength to the country.

Let us remember Canada's federalism creates a common identity and purpose that can transcend differences without replacing joint local identities and local communities. Federalism provides the structure of an economic union but places it under control of a democratic legislature.

Federalism allows minority groups to exercise democratic control over their communities and to tailor laws and government services to meet their own needs and goals. Federalism allows Canada to care for all its people. It allows different communities within Canada to resolve various issues while at the same time offering their elected representatives the chance to be part of national policy making.

Canadian federalism today is very different from that of the time of Confederation. Contrary to the rhetoric of the official opposition, federalism is flexible.

Federalism is capable of listening and responding to the needs and goals of its members. It can adapt and evolve to serve the changing needs of Canadians, but federalism must always serve to reinforce the many sided character of Canada: a home for many peoples, a land of two linguistic majorities, a free and democratic society, a strong economic community, a community that provides equal opportunity and economic security, and an important player on the international stage.

Amidst all these democratic institutions as an integral part of Canadian federalism, under a legal system premised on respect for individuals and the rule of law, Quebecers have prospered. They have shared in the creation and evolution of these democratic institutions. They have shared in the progress that has brought Quebecers to the highest offices of the country, to unsurpassed success in education and culture, and to the heads of many of Canada's largest and most productive corporations. All this they did within Canada, within the present democratic, constitutional and legal framework.

Has Quebec done so badly under this system, as members of the opposition would like Quebecers to believe? The answer is clearly no. Canada is a country of freedom, tolerance and compassion. Quebecers, like their fellow citizens across this great country, have benefited from a governmental system that serves their historical cultural interests within the community of cultures that constitutes Canada.

The government's vision for Canada is one that builds on its finest traditions and grows to serve all Canadians and all of Canada in its wonderful diversity.

I assure the House the government will continue to abide by the true principles of democracy and by the rule of law in its dealings with the many issues facing the country, including those brought forth by the members of the opposition.

We intend to follow the principles that have made this country strong, democratic and tolerant as we deal with those who wish to tear us asunder. We will not stoop to measures that would do a disservice to the principles on which our country was founded.

[Criminal Code, May 15th, 1996]

Mr. Speaker, I am very delighted to participate in the debate on Bill C-205 which was introduced by the hon. member for Scarborough West. I commend the hon. member for all the hard work and detailed research he has done with respect to this bill, as he has done in other cases.

The bill proposes amendments to the Criminal Code and to the Copyright Act. I will take a few minutes to review and comment on the proposed amendments to the Criminal Code.

The bill amends part XII.2 of the Criminal Code so as to include in the definition of proceeds of crime, any profit, benefit or advantage gained by a person convicted of an indictable offence or by any member of his or her family from the creation of a work based on the offence. This amendment would extend to such profits, benefits and advantages the existing provisions of the Criminal Code respecting the search, seizure and restraint of proceeds of crime, as well as the provisions concerning confiscation.

The bill also provides that a sentence for an indictable offence is deemed to include an order that any work based on an offence is subject to a new section which this bill proposes to the Copyright Act. The amendment to the Copyright Act would have the effect of vesting in Her Majesty any copyright in a work that would otherwise belong to the convicted person which is based on the offence for which he or she was convicted.

I would like to state at the outset that I am extremely sympathetic to the motives which lie behind my distinguished colleague's efforts to amend the law in this area and to those who have spoken in favour of this change. The phenomenon of criminals writing or threatening to write accounts of their crimes in exchange for money or for other benefits is a relatively new thing in Canada.

The very idea that a criminal who has committed a violent act or a series of violent acts, such as in the Bernardo case, could actually benefit financially from the recounting of his or her criminal acts is extremely offensive to many. If the victims of those crimes are made to be subject to those accounts, are they not being victimized again?

It is therefore something which I believe should be addressed and I commend my colleague for attempting to do so through this bill. The real question that remains is how to achieve that goal without unduly limiting the expression of ideas in a free and democratic society.

The bill we have before us, and more particularly the amendments which my distinguished colleague proposes to the Criminal Code, contain certain fundamental difficulties. As I mentioned earlier, this bill would amend part XII.2 of the Criminal Code of Canada which deals with the proceeds of crime. It should be noted that part XII.2 of the Criminal Code contains a comprehensive and complex legal regime designed to seize, restrain and ultimately confiscate proceeds from the commission of enterprised crime offences or designated drug offences.

However, the moneys sought to be regulated by my colleague's bill are not derived directly or indirectly from the commission of a crime. On the contrary, they would be derived from a totally legitimate activity, writing a book or some other similarly legitimate activity. The simple act of writing a book is not in and of itself a criminal offence even if that book is a recounting of criminal activities for which the author has been convicted.

On the other hand, part XII.2 is meant to be engaged only when the proceeds are derived from the commission of a crime, which is simply not the case with the writing and publication of a book or selling the rights for a movie.

The proposed amendments to part XII.2 of the Criminal Code would subvert the purpose of this part of the code by enabling the use of the provisions of this part of the code to confiscate moneys earned from a non-criminal act. Even if one were to attempt to characterize moneys derived from the publication of a book written by a convicted person as the proceeds of crime, it would be almost impossible to justify trying to deprive moneys earned by a member of the convicted person's family who has not been convicted of anything and who has written a book about the convicted person's criminal activities.

Any regulation imposed on income earned by an individual from materials such as books, videos, movies or other activities relating to his or her criminal activities raises constitutional concerns, most notably concerns relating to the charter. Section 2(b) of the charter guarantees to all Canadians the freedom of thought, belief, opinion and expression, including freedom of the press and other media communication.

It has been suggested this bill's amendment to the Criminal Code does not infringe or restrict freedom of expression. It is argued that the regulation of moneys earned from materials relating to an individual's criminal activity does not impair freedom of expression in any way. The person is always at liberty to publish accounts of his or her crimes, but any money earned from the publication would go to the government.

If this line of argument were followed, regulation of the financial exploitation of criminality would not offend section 2(b) of the charter. However, there is another approach which results in a different conclusion. This approach to the characterization of this

legislative initiative would result in the finding of a prima facie breach of section 2(b) of the charter.

The approach holds that any attempt to regulate the moneys paid to a convicted person for publishing an account of his or her crimes amounts to a content based restriction on freedom of expression. The logic behind this approach rests on the fact that the only basis for depriving an author of any financial benefit from such an account of his or her crime is the content of the publication or expression itself. Typically the courts have found that content based limitations violate section 2(b) of the charter.

This initiative may also raise constitutional division of powers concerns. I mention this because the division of legislative powers established by sections 91 and 92 of the Constitution Act, 1867 assigns responsibility over certain activities to the federal government and other activities to provincial jurisdictions. Section 91(27) gives federal Parliament the exclusive power to enact criminal laws and laws relating to criminal procedure. Sections 92(13) and 92(16) permit provincial legislatures to enact laws affecting civil rights in matters of a private nature.

In the Queen v. Zelinski a bare majority of the supreme court held that an accused person could be ordered to compensate victims of crime provided that such an order was an element of the sentencing process in criminal proceedings. This case dates back to 1978. Subsequent jurisprudence suggests the creation of a civil right of action for breach of the criminal law is very likely ultra vires of Parliament. That is, outside the jurisdiction of Parliament.

It has been suggested the laws seeking to attach money earned from publishing accounts of criminal activity do not fit comfortably within section 91(27) of the Constitution Act of 1867, within the federal powers.

Part XXI.2 of the Criminal Code already contains a legal regime designed to assist in confiscating proceeds obtained as a consequence of the commission of certain designated crimes. However, the moneys sought to be regulated here have only the most tenuous relationship to the crimes of which the individual has been convicted.

Numerous publications have made significant literary, historical, criminological, sociological and psychological contributions to society. One such book, Go Boy by Roger Caron, which depicts a number of bank robberies the author committed, resulted in the author's receiving the governor general's award for literacy.

The act of writing a book, producing a movie, even when based on a crime, is not criminal. The moneys earned directly from those acts are sought to be taken away from the author. Simply put, it is difficult to characterize these as fruits or proceeds of crime. Rather, the financial exploitation of crime is more accurately characterized as the regulation of contractual rights, that is, within the legislative power of the province. This has been enacted in one province and certainly options are open for other provinces to to follow the lead of Ontario.

[Criminal Code, May 14th, 1996]

Mr. Speaker, I am very pleased to participate in the debate on Bill C-218, which is sponsored by the hon. member for Prince George-Peace River.

Bill C-218 seeks to impose the death penalty for first degree murder committed by a person 18 years of age or more and it seeks to change the prison terms for first and second degree murder that can be imposed on persons under the age of 18. In my remarks today I wish to speak on two aspects of this bill: first, the wisdom of reopening the debate on capital punishment for murder, and second, the suggestion that there should be increased prison terms for murder for persons under the age of 18.

The issue of capital punishment has been thoroughly explored at the national level. After debating the question a number of times between 1966 and 1976, the House of Commons adopted a bill abolishing capital punishment in 1976.

The most recent extensive debate took place less than 10 years ago in 1987. The subject of debate was a government motion. It called on the House of Commons to support, in principle, the reinstatement of capital punishment and to establish a special committee to provide recommendations on two aspects: first, on the offences that should carry the death penalty; and second, on the method or methods that should be used to carry out the sentence of death. In a free vote, and after debating the question at length in the House of Commons, members of the House of Commons voted against the motion and, therefore, against the reinstatement of capital punishment in the Criminal Code.

It is notable that in the time since this was last discussed in the House, capital punishment has not been an issue of great national importance. The hon. member is introducing this bill now, notwithstanding the fact that in 1994 Canada recorded its lowest murder rate since 1969.

In 1975, just before capital punishment was abolished for murder, the homicide rate in Canada was 3 per cent. In 1987 when the last major debate on this subject took place, the rate was 2.4 per cent. The homicide rate for 1994 in Canada, the last year for which it is available, was 2 per cent. These numbers show that not only has the murder rate not gone up since the death penalty was abolished, it has actually gone down. This is hardly justification for seeking a debate on the death penalty.

While Canadians are rightly revolted by murder, which receives the most severe sanction under the Criminal Code, the case has not been made effectively to demonstrate that the current law has failed to punish murders adequately and requires change. In my view, the

death penalty exceeds what is necessary to achieve various legitimate sentencing objectives.

The onus is on those who would want to change the law in such a fundamental way to make a compelling case. I am not persuaded by the arguments being made.

I also oppose the death penalty on practical grounds, moral grounds and conscientious grounds. I believe that effective arguments can easily be advanced to support this position. Such arguments have been made in the House over the years.

Since the 1987 debates, however, two significant cases have come to light: the wrongful convictions for murder of Donald Marshall, Jr. and Guy-Paul Morin. If capital punishment had been in effect, they may not have had a second chance at life. This is why I oppose the death penalty on very practical grounds.

If we as legislators were to support the death penalty, would we or a member of our families be willing to be that first mistake? I think not. That is why I am very opposed to capital punishment.

Our system of justice, while it does a good job, certainly is not perfect and mistakes happen. When concerned with the life of an innocent individual, we cannot afford to make that mistake.

The issue of capital punishment is both a moral and a personal issue. It is also a matter of how we see ourselves as a country and as a people. To return to capital punishment in Canada would be to go against the grain internationally. The trend in the world is to abolish the death penalty. To support a return to the death penalty for murder would be a retrograde move.

We see in the neighbouring nation to the south the presence of the death penalty. Has that done a thing to stop crimes of violence in that country? No, it has not.

I want to turn my attention now to the proposed increased prison terms for murder for persons under 18 years of age. It is quite surprising for the hon. member to bring forward these proposals at this time when new sentencing and parole eligibility periods for youth convicted of murder came into effect less than six months ago, on December 1, 1995.

A youth who is 14 years of age or over at the time of the commission of the offence of first degree murder or second degree murder may be transferred to adult court. Depending on whether the youth is found guilty in youth court or in adult court, different sentences and parole eligibility regimes apply.

If convicted of murder in adult court, the youth will be sentenced to life imprisonment. In such a case, the parole eligibility period was formerly set by the court at between five and ten years. Since December 1, 1995, a 16 or 17-year-old youth convicted of first degree murder must serve at least 10 years before being eligible for parole. A 16 or 17-year-old youth convicted of second degree murder must serve at least seven years. A youth aged 14 or 15 who is convicted of either first or second degree murder in adult court must serve a period of time between five and seven years inclusive as set by the court before being eligible for parole.

For convictions in youth court the maximum penalty for first degree murder has been increased from the maximum of five years to a maximum of ten years. The penalty for second degree murder is now seven years. Sentences for both first and second degree murder in youth court have a maximum custodial portion and a maximum period of conditional supervision within the community.

The House of Commons Standing Committee on Justice and Legal Affairs is currently studying issues related to youth crime, the youth justice system and matters concerning the operation and implementation of the Young Offenders Act. We should wait for the report of the committee before amending further the Young Offenders Act. We should also wait until we have an opportunity to assess the recent modifications to that act.

In addition, further input on the Young Offenders Act will be provided by the federal, provincial and territorial ministers task force on young offenders which will be forthcoming soon.

I cannot support this bill because I do not support the reinstatement of the death penalty. I believe the proposed amendments to the Young Offenders Act have been made and any addition or changes to that act prior to further deliberations by the committee and before the input from the federal, provincial and territorial justice ministers' committee would be premature and ill-advised.

I do not support the bill. I would like to thank the House for the opportunity to participate in the debate.

[Justice, May 10th, 1996]

Mr. Speaker, with respect to the hon. member, the Minister of Justice and his provincial counterparts have been working on such initiatives for a considerable length of time.

Such initiatives are consistent with what has been stated by the minister in the past and are quite consistent with the beliefs of the member opposite. We ought to ensure that violent offenders are kept incarcerated for an appropriate length of time to keep our society safe and to deal with non-violent offenders in a community setting.

[Justice, May 10th, 1996]

Mr. Speaker, I thank the hon. member for his question.

The hon. member is aware that the Minister of Justice has been moving to ensure that our homes and our streets are safe. In that vein he is taking measures to ensure that violent offenders are put behind bars, where they belong, for an appropriate length of time through measures to stiffen up the Criminal Code and, through the solicitor general, measures to stiffen up the conditional release act.

We will continue to take measures such as this to ensure that violent offenders are behind bars to keep our streets safe.