Gordon Kirkby

[Criminal Code, April 9th, 1997]

Mr. Speaker, I am pleased to speak to Bill C-247, an act to amend the Criminal Code with respect to trespass.

The bill proposes to amend section 41 of the Criminal Code by adding a new subsection (3), which would carry a summary conviction offence in the case of subsequent trespass.

The bill would therefore create a specific offence that would apply whenever a person trespasses on any property after having already been lawfully asked to leave or prevented from entering less than 24 hours before. This subsequent trespass would occur with respect to residential property or any other kind of property.

I believe the hon. member for New Westminster-Burnaby is trying with this bill to stem a problem that occurs in his constituency and which may be taking place in a number of urban areas across the country. The problem is essentially one of people, particularly young persons, who may hang out at shopping centres and at times to some degree make a nuisance of themselves. These young people are often asked to leave by a security guard or a shop owner but they keep coming back, sometimes day after day.

I agree with the hon. member that sometimes such behaviour can be annoying. However, I have problems with the remedies proposed by the hon. member. I believe that the proposed remedy is not in line with the principles that govern the current trespass provisions in the Criminal Code.

Section 41 of the Criminal Code provides that a person who is in peaceable possession of a dwelling house or real property is justified in using reasonable force to prevent a person from trespassing on the property or to remove the person from the property. Trespassing itself does not constitute a criminal offence. A criminal offence would be committed only if there were physical resistance of one sort or another to the removal that could be considered an assault.

Under the current law no offence is committed when one leaves a place without resistance when asked to do so. The change that the hon. member is proposing is to make it an offence to return after one has been asked to leave once and has left the place peacefully.

My first comment is that the bill appears to create a somewhat odd situation. The oddity would come from the face of the bill that makes it an offence to trespass in a certain place when one does it for the second or subsequent time but when the same act done for the first time is not an offence. I find that a little odd.

Another concern is that the bill would make it an offence to trespass on not only private property but even in a public place. The bill would apply not only to persons doing subsequent trespassing on a dwelling house but also to persons doing subsequent trespassing on any real property, including places considered generally open to the public.

There are some instances where trespassing is a criminal offence under the Criminal Code provisions. For instance, trespassing at night is an offence. Section 177 of the Criminal Code makes it an offence to loiter or prowl at night on the property of another person near a dwelling house situated on that property. Trespassing at night is an offence punishable by summary conviction.

Clearly there is a big difference between trespassing at night, which has sinister connotations, and the kind of trespassing that Bill C-237 is aiming at.

While I agree that teenagers hanging out at the mall can annoy some shop owners and clients, this behaviour does not in general have a sinister characteristic that trespassing at night could have. The behaviour considered in Bill C-237 is nowhere near as serious

as what is considered to constitute a trespassing offence under the Criminal Code.

What we are talking about here is more like what is referred in common parlance as loitering. I would like to point out that loitering in a public place and obstructing persons who are in that place is already a summary conviction under section 175(1)(c) of the Criminal Code. A person or group of persons hanging out at a shopping centre may fall within the ambit of 175(1)(c) if they obstruct persons such as shoppers or shopkeepers who are in that place.

I believe that the offence of loitering in section 175(1)(c) would make sense precisely because of the conduct of obstruction, that which causes inconvenience or harm to other people. However, young people who simply hang out at their local shopping mall are not causing any obstruction and are not committing any actual misconduct, nor are they doing any direct physical harm to anyone.

Creating a Criminal Code provision aimed at alleviating this type of situation is like swatting a fly with the proverbial sledge hammer. The hon. member indicated that in many areas these situations can be remedied by either municipal bylaws or provincial law. It seems a long stretch to use the most severe legislative sanction that can be drawn, that is the Criminal Code, the criminal law of the land.

The hon. member wants to make it an offence just to be in a place that is not necessarily a private residential property or some place of a private nature. He wants to make it an offence to be in a public place such as a local shopping mall. I am concerned about the potential for abuse by the owners or tenants of these public places and perhaps by security guards or law enforcement authorities.

I strongly believe it is not appropriate to create a Criminal Code offence that would criminalize acts that can be seen as trivial in comparison with what is normally the domain of the code, more so since these acts often involve young people.

In addition, I do not believe it is necessary since there are already provisions in the Criminal Code that would allow authorities to deal with cases that do constitute a nuisance. As I indicated previously, when serious actual acts which harm or could harm either shopkeepers or clients to public places are taking place, the Criminal Code already has sanction for these more serious activities.

I cannot support the bill because the type of problem the bill is dealing with is not the type of problem that would appropriately be dealt with in the Criminal Code. This is a type of problem, as I indicated, that could very easily be dealt with by municipal bylaws and provincial statutes and regulations.

Unless we are dealing with serious matters we should allow our provincial municipal authorities, those closer to the scene of the problem, to make legislation that fits in their circumstances.

[Criminal Code, April 8th, 1997]

We gave you a ton of evidence.

[Criminal Code, April 8th, 1997]

There you go again.

[Criminal Code, April 8th, 1997]

What a bunch of garbage.

[Criminal Code, April 8th, 1997]

It looks like the Tories are going to beat you guys.

[Criminal Code, April 8th, 1997]

Mr. Speaker, I would like to rise today to say a few words with respect to the amendment that has been put forward.

The amendment that has been put forward is merely in my view making explicit what was implicit before. The section as it was contained with respect to conditional sentencing stated that conditional sentencing was only allowed where the sentence imposed was less than two years. For those crimes that are more than two years in duration conditional sentencing would not be allowed for such crimes.

In addition it said that conditional sentencing could only be put forward when the judge was satisfied that serving the sentence in the community would not endanger the safety of the community.

In addition to this the conditions of the principles of sentencing contained in section 718 and 718.2 would also apply to this. What the amendment is doing is making that explicit so that when cases are brought before the judiciary it is right there, that the principles of sentencing apply.

It would be very instructive to read the principles of sentencing that would apply to the application of the conditional sentence. Section 718 states:

The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or the community;

(f) to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims and communities.

These are the principles that apply to a conditional sentence. While it was implicit before it is explicit now that these principles apply to conditional sentencing. Conditional sentences ought only to be put forward in appropriate cases.

The provincial governments and the federal government worked together to develop a bill that would better ensure the safety of citizens in our society. They wished to ensure that people who posed a risk to the community would not be allowed to be released from prison to offend again.

Those who did not pose a risk to society would be free to serve their sentence in the community subject to appropriate conditions. If those conditions were breached they would then serve the rest of their sentence in a correctional facility.

I think it is very important to recognize that this is a clarification of the code to ensure that conditional sentences are only applied in those circumstances where there is no danger to society and where the principles of sentencing, of deterrents of denunciation of the crime are appropriately applied.

The reason for this is due to the experience of many in the justice system prior to these amendments. There were many cases where people who had committed crimes did go to jail. However, because of the overcrowding of the facilities and because many people who were there were not a risk to society, the people who were a risk to society would be released into the community after serving a very short time in prison.

Therefore the federal and provincial governments working together developed this solution which will better ensure that those who are a risk to society will be kept in prison longer and for an appropriate length of time. Those who do not pose a risk to society will be able to serve their sentence within the community.

It is as a result of these amendments that as we move into the future this clarification that we have brought forward today will ensure that conditional sentencing is only applied in appropriate cases.

[Criminal Code, April 8th, 1997]

What about gun control?

[Criminal Code, April 8th, 1997]

moved:

That Bill C-17 be amended by adding after line 15 on page 48 the following:

1995, c. 22, s.6

"107.1 Paragraph 742.1(b) of the act is replaced by the following:

(b) is satisfied that serving the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in section 718 to 718.2,"

That Bill C-17 be amended by adding after line 13 on page 66 the following:

1996, c.34

An act to amend the Criminal Code (judicial review of parole ineligibility) and another act

139.1 Section 8 of an act to amend the Criminal Code (judicial review of parole ineligibility) and another act is replaced by the following:

1. Paragraph 745.63(1)(d) of the Criminal Code, as enacted by section 2 of this act, applies in respect of hearings held after the coming into force of this section with respect to applications for judicial review in respect of crimes committed before or after the coming into force of this section.

[Criminal Code, April 7th, 1997]

Mr. Speaker, the purpose of this motion is to remove two procedural requirements to prosecution in Canada of cases of sexual abuse committed by Canadians abroad. Bill C-27 proposes to allow for the prosecution in Canada of Canadians who obtain the sexual services of a child for consideration, what is often referred to as child sex tourism.

However, following testimony before the justice and legal affairs committee, the committee amended the bill in order to allow as well for the prosecution in Canada of Canadians who sexually abuse children while abroad. This new amendment requires two preconditions to the prosecution in Canada of a Canadian who sexually abuses a child while outside of Canada which do not exist in the case of child sex tourism offences.

First, a request has to be made by the foreign state where the offence is alleged to have been committed. Second, the consent of the responsible provincial attorney general has to be obtained. Both preconditions are essential to the exercise of Canada's extraterritorial jurisdiction. The motion proposes to remove these two procedural requirements.

The justice and legal affairs committee heard from witnesses as to the importance of these procedural prerequisites. They are necessary for two reasons. The first reason is that prosecuting in Canada for offences committed abroad is contrary to the principle that a country has jurisdiction for offences committed on its territory. An exception to this principle is accepted when it is so required by an international convention or permitted by customary international law or international consensus, as is the case for sex tourism.

The emerging consensus to allow states to prosecute their nationals involved in child sex tourism is evidenced by the drafting of an optional protocol, in which Canada is playing an active role, to the United Nations Convention on the Rights of the Child on the sale of children, child prostitution and child pornography. But it is not the case for child sexual abuse.

The optional protocol addresses only two sexual offences relating to children, child prostitution and child pornography. At this time it does not deal with other sexual offences against children. The declaration and agenda for action recently was adopted at the world congress against the commercial exploitation of children which was hosted by the Swedish government in August 1996. It also dealt with only child prostitution and child pornography. The lack of international consensus with respect to the country's extraterritorial jurisdiction over sexual abuse of children committed in a foreign country underscores the importance of having procedural requirements in order to comply with proper jurisdictional principles.

The second reason for keeping the additional procedural requirements can be explained in terms of sovereignty and practicality. The request from the foreign state indicates an interest from that state in the prosecution of the offence and assures Canada that the foreign state will co-operate in facilitating the Canadian prosecution of the offence. Without a request from the foreign state and the underlying assumption of co-operation Canada would have no basis to send law enforcement officials into the foreign state to interview witnesses and collect evidence. The co-operation from the foreign state is necessary to gather evidence required for the prosecution.

In conclusion, it is my belief that these procedural requirements are essential in order to make the committee's amendment work effectively. For these reasons I do not support the motion.

[Criminal Code, April 7th, 1997]

Answer my question.