Gordon Kirkby

[Criminal Code, March 19th, 1996]

Mr. Speaker, some people share the perception that Canada is soft on impaired drivers, that our laws are weak, that our enforcement is inadequate and that our judiciary is unwilling to impose harsh sentences.

No one will deny the tragic consequences of impaired driving. Certainly, as the hon. member for Prince George-Bulkley Valley indicated, there is hardly anyone who has not been touched or who does not know of an instance of an impaired driving tragedy striking in their community or among their family or friends.

When such a tragedy occurs we should focus on the responsible party, on his or her actions, not necessarily on the law. The assumption is always the same, that a tougher law with a more severe penalty would have deterred the driver from drinking and averted the tragedy. This is not the case.

The causes of impaired driving are complex and the solutions to this serious social problem are not simple. One cannot merely increase the harshness of penalties for offenders and expect this alone will stop people from drinking and driving. Impaired drivers are not a homogeneous group. A variety of measures are needed. For example, while fines or jail sentences may deter some people, alcohol dependent persons may be less susceptible to deterrents when sanctions are severe. Treatment might be a more effective approach in such cases.

In the course of the government's review of the problem of impaired driving in the mid-1980s the experiences and research of many countries were examined. All the evidence suggests that legislative amendments must be considered in the broader context of an overall legislative and prevention strategy to deal with the problem of impaired driving. No single measure can provide the answer.

Legal sanctions for example can only provide a partial solution. Increased law enforcement which accordingly augments the perceived risk of apprehension and punishment may have a greater deterrent effect than increased penalties.

Research conducted since 1985 indicates that changing the prevalent social acceptability of drinking and driving has been a more effective preventive measure than any changes in the law or the degree to which it has been enforced.

While there has been a significant reduction in impaired driving since 1980, I know that impaired driving continues to be a problem in Canada. That problem can be attributed largely to a group of high risk drivers who believe themselves to be above the law and immune to tragedy, disaster or detection.

The great majority of Canadian drivers appreciate the risks to themselves and to public safety and have embraced the message both federal and provincial governments continue to promote, that drinking and driving is a serious crime and a serious social problem.

Changing the law and the severity of the penalties is not a silver bullet. It is not the magic solution that will solve all our problems in dealing with impaired driving.

I do not mean to suggest the law does not have an impact on impaired drivers. Canada has in place strict laws and tough penalties. The Criminal Code comprehensively addresses a variety of impaired driving offences and sets out a range of punishments in accordance with the severity of the offence.

Moreover, the impaired driving provisions provide one of the very few examples in the Criminal Code where a minimum sentence is provided. The following minimum punishments are provided for the offences of impaired driving, driving over .08 and refusal to provide a breath or blood sample. For the first offence the fine is $300; for the second offence, imprisonment for 14 days; for each subsequent offence, imprisonment for a minimum of 90 days.

Maximum punishments are also prescribed. Where the offence is punishable by summary conviction the maximum punishment is

six months imprisonment. For indictable offences, the maximum term of imprisonment is five years.

The minimum punishment for a second conviction is 14 days imprisonment and a mandatory driving prohibition of 6 months. A person convicted of a third or subsequent impaired driving offence, driving over .08 or refusal would be subject to a minimum penalty of 90 days imprisonment and up to six months on summary conviction or five years on indictment and a mandatory prohibition for driving for a minimum of one year and up to three years.

The Criminal code also provides that upon conviction for an impaired driving offence, a mandatory prohibition from driving will be imposed. For the first offence, a minimum of three months is imposed. For the second offence, six months is imposed and for subsequent offences, a minimum of one year is imposed.

Upon conviction for impaired driving causing death or bodily harm, the prohibition from driving may be up 10 years. These prohibitions are in addition to any provincial licence suspensions which may be imposed in accordance with provincial highway traffic legislation.

Impaired driving causing bodily harm is an indictable offence and carries a maximum of 10 years in prison and a maximum 10-year prohibition from driving and an unlimited fine. The offence of impaired driving causing death carries a 14-year maximum term of imprisonment and a 10-year maximum prohibition from driving and an unlimited fine.

The penalty imposed on a person in respect of an accident in which death or serious bodily harm has occurred is based on fault. In other words, the impaired driving must be the cause of the bodily harm or death, and therefore the penalty should be proportional to the seriousness of the act that caused the death or bodily harm. This is why there is no mandatory minimum sentence for impaired driving causing bodily harm or death.

The bill before the House today would amend subsection 253(3) of the code to provide a minimum of seven years imprisonment and would retain the present maximum of 14 years imprisonment.

I cannot support such an amendment. I applaud, however, the hon. member's intention to raise awareness about the tragedies caused by impaired driving and to further deter such criminal behaviour. A minimum sentence will not in my view accomplish this. It is inconsistent with the sentencing principles and the philosophy within the Criminal Code.

Moreover, there is a great danger that the minimum sentence proposed will become the ceiling rather than the floor and all sentences for impaired driving causing death will hover around seven years rather than permitting judges to properly exercise their discretion and frame the sentence to address the severity of the crime, with the offender's impaired driving record and countless other factors taken into account in sentencing.

Upon proclamation of the sentencing bill, Bill C-41, passed by the House less than a year ago, the Criminal Code will include a statement of the purposes and principles of sentencing. As a fundamental principle, a sentence must be proportionate to the gravity of the offence and the degree of the responsibility of the offender.

In addition to this fundamental principle, the Criminal Code will set out additional principles which will apply in the sentencing of offenders convicted of any code offence including impaired driving offences.

These principles include that a sentence should be similar to sentences imposed for similar offences committed in similar circumstances in order to promote consistency of sentences that an offender should not be deprived of liberty if less restrictive sanctions may be appropriate and that all available sanctions other than imprisonment that are reasonable in the circumstances be considered.

The code will also set out the purpose of sentencing. The fundamental purpose of sentencing is to contribute along with crime prevention initiatives to respect for the law and maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: to denounce unlawful conduct; to deter the offender and other persons from committing offences; to separate offenders from society where necessary; to assist in rehabilitation of offenders; to provide reparations for harm done to the victims or to the community; to promote a sense of responsibility in offenders and acknowledgement of the harm done to victims and the community.

With these principles entrenched in the Criminal Code we should not need to spell out for judges the sentences that must be imposed in particular circumstances. We have given them the guidance to exercise their discretion.

Moreover, we should not support piecemeal amendments to the Criminal Code. When the government proposes code amendments after comprehensive study and consultation, we are often criticized for singling out certain provisions for amendment rather than undertaking more fundamental reforms.

The amendment proposed in Bill C-201 seeks to impose a minimum penalty on a single provision of the code, impaired driving causing death. No similar amendments are proposed for other offences, for example impaired driving causing bodily harm, criminal negligence causing death or bodily harm, or dangerous driving causing bodily harm or death. Therefore I cannot support the proposed amendment.

I have a letter from Mothers Against Drunk Driving giving six reasons why the bill ought not to be supported. I commend this correspondence to hon. members who may feel otherwise.

[Judges Act, March 6th, 1996]

Madam Speaker, it is my understanding that there will be no increase in costs in regard to this extension.

[Judges Act, March 6th, 1996]

Madam Speaker, I am very pleased to be able to speak to the House on Bill C-2, an act to amend the Judges Act.

I wish to express my very sincere thanks to the member for Saint-Hubert and the member for Crowfoot for their approval of the amendment to the act and their facilitation in assuring its passage through the House.

As members of the House are aware, under the Constitution of Canada it is the duty of Parliament to fix and provide salaries, allowances and pensions of federally appointed judges. To assist Parliament in exercising that responsibility a process was established under the Judges Act in 1981 for the review of salaries, pensions and other benefits payable to these judges.

Every three years a commission is appointed by the Minister of Justice to enquire into the adequacy of judicial remuneration. These triennial commissions are currently under statutory obligation to report to the minister within six months of appointment. The Minister of Justice in turn is under a statutory obligation to table a report in Parliament within 10 sitting days after receiving the report.

The rationale of having such commissions is obvious. Triennial commissions provide the government on a regular basis with non-binding advice which is objective and independent in nature with respect to determining fair compensation for federal judges. The process respects and enhances the independence of the judiciary according to our constitutional traditions. The Supreme Court of Canada has affirmed that this independence of the judiciary is grounded on both security of tenure and financial security.

The six-month reporting period has proven to be a very short time for the triennial commission members, who serve part time, to complete their onerous responsibilities. They need to invite and receive briefs on behalf of the public from judges' groups and others. They need to publish notices in the press. They need to acquire and study highly technical information. They need to await and study written submissions. They need to conduct public hearings. They need to prepare and translate the report. All of this is within six months of appointment. This puts undue pressure on the commissioners and barely allows them the time necessary to approach the job methodically and produce a well considered report on compensation issues.

The judges' organizations, the Canadian Bar Association and others making submissions to the commission have generally found the present six-month reporting period to be insufficient. The chair of the commission which is currently under way, Mr. David Scott, Q.C., as well as the main judicial organizations and the Canadian Bar Association are in favour of extending the reporting period by six months.

Bill C-2 would do just that and nothing more. It would merely extend the reporting period for the triennial commissions from six months to twelve. The cost of this amendment would be nil. The bill would have no bearing on judges' salaries, which continue to be frozen like those of everyone else in the federal public sector.

I urge honourable members to approve the quick passage of this minor amendment to the Judges Act. I once again wish to extend my sincere thanks to the member for Saint-Hubert and the member for Crowfoot.

[Bell Of Batoche, February 28th, 1996]

Mr. Speaker, the Metis people of Canada, the Metis Nation of Saskatchewan and in particular the Metis of Batoche suffered a great injustice in 1885 when the bell of Batoche was wrongfully removed from a Metis church, St. Antoine de Padoue, as a trophy of war. The bell is a symbol of Metis heritage and represents an important period in Metis history.

Since its removal from the church in 1885, the bell has been located first at the firehall in Millbrook and then moved to Millbrook Legion Hall in Millbrook, Ontario. However, the bell of Batoche disappeared from the legion hall about four and a half years ago and the current whereabouts of the bell are unknown. As a result, all Canadians are deprived of viewing this important Canadian cultural artefact which is a symbol of pride and hope of the Metis nation.

The resolution of this matter will take goodwill and a willingness to work together on the part of the Metis people and the Millbrook legion in order to ensure the bell's safe return to a location where once again all Canadians will be able to see an important part of Canada's cultural heritage.

[Committees Of The House, December 14th, 1995]

Mr. Speaker, I have the honour to present in both official languages the eighth report of the Standing Committee on Natural Resources entitled "Streamlining Environmental Regulation for Mining: An Interim Report".

I wish to express my sincere thanks to all the members of the committee who co-operated in coming to a unanimous report. I will stress that this is an interim report. There is more to come but today I thank you, Mr. Speaker, and the members of the committee for working together to make this possible.

[Stubble Jumpers, December 8th, 1995]

Mr. Speaker, November 1995 saw an enthusiastic group of actors take to the stage in Prince Albert. Produced by Saskatchewan's newest musical production company, Destiny Productions, delighted Prince Albert audiences enjoyed the world premier of "Stubble Jumpers", a Broadway quality production.

"Stubble Jumpers", a great story about Saskatchewan boys heading off to fight for Canada in the second world war, is destined to become one of Canada's greatest musicals.

The book, music and lyrics were written by Prince Albertan, Reverend Roy Benson. Another Prince Albertan, musician Rich Miller, assumed the role of arranging and musical director. The rest of the creative team consisted of artistic director Darryl Lindenbach, choreographer Gillian Horn and Carole Courtney as vocal coach.

At a time when Canadian unity is being questioned, let us pay tribute to the men and women who fought and sacrificed on behalf of a united Canada.

"Stubble Jumpers" is a great new musical. Broadway has come to Prince Albert and Prince Albert will end up on Broadway.

[National Unity, November 3rd, 1995]

Mr. Speaker, today I would like to thank the constituents of my riding of Prince Albert-Churchill River for their support for a strong and United Canada.

On Friday, October 27 a large number of Prince Albertans gathered to demonstrate their solidarity with Quebecers and support for a united country. Many others also signed a petition in which they stated their deeply held belief in Canada.

I wish to recognize four individuals from my riding who travelled to Montreal to attend the no rally: Lois Holcomb, Arlene Harper, and Jason and Karmen McNabb. I also wish to thank Val Longworth, who spearheaded a fundraising drive to assist these people to go to the Montreal rally. I also wish to thank those who financially contributed to this event.

While in Montreal I was particularly moved by the 150,000 voices singing O Canada and the outpouring of love for Quebec and Canada.

In closing, I wish to commend the constituents of Prince Albert-Churchill River for their commitment to our common values of democracy and tolerance and to a strong and united Canada.

[Agriculture And Agri-Food Administrative Monetary Penalties Act, October 26th, 1995]

Mr. Speaker, we are now dealing with amendments brought forward in group No. 5, Motions Nos. 21 and 22, in relation to Bill C-61, the agriculture and agri-food administrative monetary penalties act. I appreciate the opportunity to address the matter.

The purpose of Motions Nos. 21 and 22 is to change the process of appointing members of the review tribunal by having the governor in council appointments approved by an agriculture related committee of the House of Commons before the appointments are effective.

A point that should be made with regard to this matter is similar to one made in relation to an amendment brought forward by the Reform Party that the current appointment process and the one in

the present bill and as stated by the Minister of Agriculture and Agri-Food is a tried and true process, one approved of by the courts. The courts posses the ability to ensure that all decisions are according to the administrative law of the land.

It is proposed that an agriculture related committee approve the people who are put forward to sit on these tribunals to hear disputes between the regulators and those who may have run afoul of various agriculture and agri-food regulations pursuant to a number of acts. What is being proposed is going to make the procedure more cumbersome. The whole intent of the legislation is to find efficiencies in the way the government does business, to make the process cheaper, to ensure that the rules of fundamental administrative justice can be achieved and that it is balanced with administrative ease.

In my view, the proposal adds to the cumbersome nature of the appointment process. The time required to deal with the appointments will be increased. The committee could refuse to recommend any of the incumbents to these positions thereby effectively preventing these positions from being filled.

It is also important to say that this represents a move toward a more American style hearing process for the approval of various appointments to positions.

If we look south of the border we see these monstrously expensive, cumbersome processes to appoint various individuals. These individuals are subject to such scrutiny, they are basically put in a position where they are unable to defend themselves from the most vicious, partisan types of attacks.

This takes away from the dignity of a person sitting on a quasi-judicial body. It makes it difficult for people of good quality to want to subject themselves to this type of situation. Even if they are good people and are willing to submit to this type of interrogation and partisan attack on their credibility, whether they make it through the process or not, they will not be what is needed to maintain the respect of both the government regulators and the people who have run afoul of various regulations in various agricultural statutes.

There are a number of reasons why I am opposed to these types of situations arising. The situation we have now is tried, it is true. It has been upheld by the courts as a method of approving these people. It takes away from the partisanship which could really detract from the dignity of the process, the dignity of the office of the person participating and assisting the country.

[Agriculture And Agri-Food Administrative Monetary Penalties Act, October 26th, 1995]

Madam Speaker, I appreciate the opportunity to once again address some of the motions by members from the other side of the House in relation to the agriculture and agri-food administrative monetary penalties act.

The purpose of the bill is to allow for expedience and resolution to breaches of regulations in the agriculture and agri-food industry. It is designed to make it a lot easier for the department and those involved in breaches of regulations to resolve their difficulties.

It is designed to ensure we get compliance with the regulations as soon as is reasonably possible. The bill does not inhibit the rights of people accused of violating the respective statutes to have the option to gain the full procedural and substantive protection that can be gained from the law if they so choose to defend themselves in traditional fashion of court hearings and due process. This is still available to those who violate the act.

The purpose of Motion No. 20 according to hon. members opposite is to clarify that the minister and the Government of Canada carry the burden of proof in both the ministerial review and the review by the tribunal that the person named in the notice of violation committed the violation. This is certainly what the current wording of the bill provides for.

We have no objection to this amendment. This is another amendment the minister has accepted from members opposite. This shows a responsible attitude by the minister of agriculture in the sense that where there are amendments that enhance the act, where there are amendments that do not do any harm to what is sought to be accomplished by the act, regardless of who brings them forward, if they improve the legislation and make it a bit clearer, the government is certainly willing to hear them.

The legislation makes clear that the minister carries the burden of proof in both the ministerial review and the review by the tribunal that the person named in the notice of violation is the one who committed the violation. This goes back to one of the fundamental bases of the Canadian justice system of due process. The system is based on many administrative procedural protections granted to people who run afoul of regulatory or sometimes even criminal law.

Our common law system has always sought to protect those accused of violations, whether regulatory offences, criminal offences such as under the highway traffic act, provincial offences or somewhere in between. Our legal system always provides safeguards to the person accused of the violation commensurate with the penalty and the seriousness of the breach involved.

Our justice system on a very fundamental basis seeks to ensure innocent people are not convicted or not held responsible for violations they did not participate in. That is why even within the common law I do not think there is even any need to suggest the minister carry the burden of proof. The state in matters of breaches of criminal violations, regulatory violations and provincial statute violations always carries the burden of proof.

It is probably better that a few guilty people are acquitted rather than innocent people being subjected to the raw power, the sanction of the state when they were not guilty of what they were charged with.

In relation to the first motion, we are accepting it. The fundamental principles of Canadian law that the minister carry the burden of proof is simply a foregone conclusion and one we accept. This is not the case in all countries. Sometimes one is presumed guilty and must prove one's innocence. In Canada, the British Commonwealth system, the common law system, different considerations apply.

Motion No. 23 of Group No. 4 seeks to provide that no lobbyist or party to a contract with the Public Service of Canada shall be appointed as a member of the board or the tribunal.

The government in appointing individuals to these tribunals always appoints well qualified people who are known for their fairness so that people can trust the correctness of the decisions made by these tribunals. Each of these appointments is very carefully weighed. The people must be qualified in order to participate in these issues.

Once again common law clearly requires that people with a conflict of interest not serve on boards or tribunals such as this. As has been the track record of the minister to date in other appointments, as well as other ministers in other departments, the people sought to be placed in positions like this are qualified people. They will carry out their duties in a manner that will respect the government and also the people accused of various violations of agriculture and agri-food penalties.

No one in a conflict of interest will end up on these tribunals. They are quasi-judicial bodies and as a result will have to be above reproach. Common law provides many administrative remedies that could be taken through the courts should there be any reasonable apprehension of bias or other grounds on which the decision of the appointed person could be put in question.

People with these types of connections will simply not be appointed. If a situation arises in which there could be any type of conflict whatsoever, administrative law procedures are available through the courts to ensure people who are being judged in this fashion are fully protected.

While Motion No. 20 says exactly what the bill says and follows the philosophy and basic underpinnings of the law in Canada, the minister will be accepting a recommendation to further clarify and ensure the law is clear and known.

With respect to the second motion, this will be taken care of in the same manner the government has done to date. Remedies are available to anyone who feels aggrieved by a decision, who feels there may be a problem, to deal through the courts with such an issue.

I again thank the minister for his efforts in bringing these changes forward, changes that will certainly improve the-

[Agriculture And Agri-Food Administrative Monetary Penalties Act, October 26th, 1995]

Mr. Speaker, it is an honour for me to rise on the bill a second time.

Within my riding there are urban areas and there is also a large rural area where agricultural producers provide the food which we all eat and enjoy.

With respect to this motion I will go over a number of the proposals for change put forward by members opposite. There is a motion which seeks to vary the maximum allowable penalty between the first and subsequent violations. While there could be some merit to these suggestions, in light of the fact that the current maximum penalties are relatively modest, it would not be in our interests to start making distinctions between first and subsequent violations for the purpose of setting a maximum penalty which could be assessed. That does not mean that where there is a subsequent violation a larger penalty could not be assessed.

The legislation allows for maximum flexibility when determining the level of penalty to be assessed when regulations have been violated. This flexibility takes into consideration the compliance history in determining the level of the fine. That is, it does not automatically lead to a greater fine. One must also consider all of the circumstances surrounding the alleged violation in determining the penalty.

In clause 4(3)(a) of Bill C-61 the penalty amounts can be increased or decreased based on the degree of intention or negligence on the part of the person who committed the violation, the amount of harm done by the violation and the compliance history of the person who committed the violation. Therefore we have a system in which all factors are considered in dealing with the maximum level of penalty to be set.

Motion No. 4 proposes that the designated person serving the notice of violation be identified. The bill seeks to achieve administrative simplicity, an inexpensive yet effective system. This is one of the quasi-judicial procedures required by the legislation. I do not believe it would be efficient to have individuals designated within the legislation. By the definition included within the legislation, the designated person issues the notice.

The service of the notice is simply a procedural matter. What we want to see is a flexible yet efficient system for ensuring that the violator of a regulation gets notice. We also want to ensure we are not overburdened with large expenses or complicated mechanisms to get the notice to the person.

The amendments to the act will allow for the provision of service to the person by registered mail. The nature of the offence is a very important factor when considering how a person should be served or notified of the offence. These offences are absolute liability offences. Therefore the procedural requirements to ensure notification, et cetera, are at a minimum level.

At the other end of the scale we have criminal law, the violation of which requires a lot more procedural care, a very much higher standard of proof. Because these offences are of a minor regulatory nature, the service need not be such that it leads to any type of inefficiency.

With respect to Motion No. 5, there is the suggestion to legislate the minimum time of 45 days within which a penalty may be paid. Dealing with time frames within legislation, at one time in our system of government it may have been quite reasonable to include within legislation time frames within which penalties may be paid or within which certain actions may be taken. However, as our legislative requirements have grown it has become more complicated.

Acts have become far more comprehensive. We are dealing with what goes into an act and what should be within the regulations. Acts are not easily amended or changed. Therefore if a provision in an act such as a time frame is found to not function properly we may be stuck with that time frame for a considerable length of time if we are looking at amending legislation to get the change.

What is being proposed is that these time frames be contained within the regulation where it is appropriate. If found to be unworkable or in need of an amendment they can be changed with the minimum amount of disruption to the system. In a cheap, effective manner they can be changed as quickly as is practical. This is what insertion of time frames within the regulations would allow.

Motion No. 18 is another motion to insert the word reasonable within the statute. It is to clarify that expenses recovered by the crown in respect of the disposal of forfeited goods are reasonable. While this was not in the legislation, certainly it was always the intention of the department to be reasonable in the charges and requirements it makes of people who forfeit goods. This is implied within the legislation.

The term reasonable would no doubt be implied in the legislation anyway. Obviously where the goods are forfeited they will not be able to make exorbitant charges. There are limitations.

The Reform Party has put forward a sensible amendment which reflects the intent of the legislation and which therefore should be accepted. It shows the openness of the government and the minister. It shows a lot of flexibility, and I appreciate that flexibility on the part of the minister.

The issue of allowing the violator to rely on the due diligence defence has been carefully addressed by a number of my other colleagues. I will echo those remarks.

Once again, I appreciate the effort that has gone into making this bill such a success. Congratulations to the minister for yet another fine piece of work.