Paul MacKlin

[Criminal Code, May 3rd, 2004]

Mr. Speaker, it is my pleasure today to speak in support of Bill C-29, which is an act to amend the Criminal Code. It deals with the issue of mental disorder.

The current motion seeks to refer the bill to committee for review now. I am confident that all members should be able to support this motion.

As the Parliamentary Secretary to the Minister of Justice indicated on April 28, Bill C-29 is to a great extent the product of a study conducted by the Standing Committee on Justice and Human Rights, as it was then known. That committee recommended improvements to the criminal law governing persons found unfit to stand trial, or not criminally responsible on account of mental disorder.

The committee review will likely focus on how Bill C-29 responds to the issues that were raised before that standing committee by the many witnesses that it heard. Bill C-29 responds to those issues and includes additional amendments to ensure an effective, efficient and fair regime. There are a few aspects of Bill C-29 that I would draw to the attention of hon. members.

First, in dealing with persons found unfit to stand trial, under the current law a person found unfit to stand trial cannot be absolutely discharged. The law governing mental disorder requires an individual assessment of an accused to ensure that both the needs of the accused for treatment and rehabilitation and the need of the public for public safety are taken into account. An unfit accused person cannot be absolutely discharged because there has been no opportunity for the Crown to establish that they have committed an offence. However, the unfit accused who does not pose a risk can be placed on a conditional disposition with minimal restrictions, if appropriate.

Many persons found unfit will become fit through treatment and once fit, will proceed to trial. Some others will not become fit for years, or perhaps they will never become fit, and cannot be tried. Our law already includes many safeguards for this group.

Bill C-29 will provide an additional safeguard to ensure that persons found unfit to stand trial who are likely to remain unfit and who do not pose a significant threat to the safety of the public can have their situation reviewed by the court. The court, and only the court, will have the authority to order a judicial stay of the proceedings for the unfit accused.

I want to assure hon. members who have voiced their concerns about public safety that the government shares their concerns about public safety. Bill C-29 has been very carefully drafted to protect public safety. A judicial stay of proceedings for an unfit accused will not be an option where the accused poses a threat to public safety.

The amendments include new provisions to ensure that an unfit accused who is not likely to ever become fit to stand trial, for example, a person who has an organic brain injury, and who does not pose a significant threat to the safety of the public may be brought to the court's attention.

A review board will be able to make a recommendation to the court to hold an inquiry into the status of the unfit accused where, in their opinion, and based on an assessment, the accused is not likely to ever be fit to stand trial and does not pose a significant threat to the safety of the public.

The court may hold an inquiry, hear from all parties, particularly the Crown, and determine whether a judicial stay of proceedings should be ordered in the interests of the proper administration of justice. The court will consider several factors in deciding whether to order a stay, including whether the Crown has had an opportunity to make its prima facie case against the accused, as it is required to do every two years. This is the current requirement in our law, that the Crown does establish that sufficient evidence can be brought forward to put the accused on trial.

The proposed amendments will address the situation of the permanently unfit accused who poses no risk and will permit the court to order a stay of proceedings. However, an unfit accused who poses a risk to safety cannot--I repeat cannot--be granted such a stay. Our law must ensure that the rights of the accused and the rights of the public to safety are balanced. The proposed amendments will do so.

Bill C-29 sets out a very detailed scheme to permit a judicial stay for an unfit accused. First, the review board, after holding one or more annual review hearings for an unfit accused, must come to the opinion that the unfit accused is not likely to become fit and that the unfit accused does not pose a significant threat to the safety of the public. The review board can order that the accused person's mental condition be assessed by a psychiatrist to assist the board in making this recommendation.

The review board then may make a recommendation to the court to hold a hearing to determine whether a judicial stay of proceedings is in the interest of the proper administration of justice. Where the court agrees to hold such a hearing, the hearing will provide opportunities to all parties to make their submissions. The Crown, who represents the public interest, could make submissions on the nature of the case against the accused, public safety and the mental condition of the accused. The accused and the treating hospital or physician could also make submissions.

I would also highlight that where the court agrees to hold a hearing, the court must order yet another assessment of the mental condition of the accused. This requirement will ensure the court has the most up to date information about the accused when determining, first, that the accused is not likely to become fit to stand trial, and second, that the accused does not pose a significant threat to the safety of the public.

Ultimately, the court must decide whether the judicial stay of proceedings is necessary in the interest of the proper administration of justice. Bill C-29 sets out several factors for the court to consider in this process, including the nature and the seriousness of the offence committed. This new provision will address the concern that some people could be caught up in the criminal justice system because they are mentally ill, although they pose no threat to public safety.

Our law cannot permit the potential indefinite detention of persons who have not been tried and convicted. Bill C-29 provides a carefully crafted approach to prevent this indefinite detention, but only for those who do not pose a significant threat to the safety of the public.

I have one final point regarding the new provision. Where the court orders a judicial stay of proceedings for an unfit accused, the Crown may appeal the order. However, there is no right of appeal for the accused where the court does not order a judicial stay. This is because this is a discretionary provision. It is not a process that the accused can initiate. The review board must make a recommendation to the court and the court will then consider the issue.

In conclusion, I hope that my comments have addressed any concerns hon. members may have. I have highlighted why this new provision is necessary. Bill C-29 includes many reforms, all designed to address the balance between protecting the rights of the accused persons who are mentally ill with the rights of the public to public safety. Clearly, we have struggled with this issue over time. There is no question that this has challenged us, the judiciary and our social services within this country to properly deal with issues of this nature. I know that many hon. members have struggled with this, both here in the House and also at committee, to try to find ways and means to meet the needs of those who are mentally ill and yet face the justice system.

Clearly, from the perspective of those who are caught in what is sometimes described as a revolving door problem, there has to be a way to assess their ability to recover from their illness, to go forward and to face the charges that have been brought to bear within the court system.

As far as I am concerned, the bill moves forward the process of being able to deal with those who are mentally ill and find themselves before our criminal courts. I hope that hon. members will find that, in going forward to the committee, the bill will receive proper and due consideration and will come forward to the House for passage so that we may solve this problem.

[Committees of the House, April 29th, 2004]

Mr. Speaker, it is always a concern that we might discourage people from running for public office. However we always have to find a way to strike a meaningful balance and in this case I believe we are striking a reasonable balance.

We should be encouraging those who have proven to be successful in business and have accumulated assets to take part in the legislative process because they bring to us a level of experience and knowledge that is very important as a contributing part to the debates within the House.

I certainly hope that this does not discourage, but obviously I do feel that there are a few points that could be taken into consideration, maybe not through the Standing Orders, as I have mentioned, but in terms of either some form of compensation for those who have to put their assets into trust. Another way may well be, as I suggested earlier, using some form of tax deductibility under the Income Tax Act where they at least would not be held at a disadvantage because they came to this place having assets.

I certainly believe there are ways and means, and if there is any deterrence within this code of conduct, that in fact that deterrence can be dealt with in other ways throughout the House.

[Committees of the House, April 29th, 2004]

Mr. Speaker, if I recall correctly, the hon. member, when speaking earlier, did refer to the code of conduct that is in place with respect to the ministerial responsibilities. I believe that in his commentary he did mention that he thought possibly that code may even be more strict in some areas than the code that is before us.

I believe that standards are appropriate within any setting where standards are required to be addressed. They should be clear and well stated. In this case there is nothing wrong with setting out standards. Even if the standards were already adhered to, I still believe that the setting of that again is also adding to the ability of each and every one of us to talk to our constituents throughout the country and to clearly state that there is a watchdog and that we are being careful in the way in which we deal with the matters of public interest.

I do not see the concern of cynicism in this regard. I believe that standards ought to be broad standards and that they should encompass the entire constituency of the House. In that end, we are trying to simply maintain, for not only our individual guidance but also for the protection of the public, a system of rules that are meaningful. I think the report will go a long way toward helping reduce any concerns that anyone may have raised because of incidents that might have occurred at the ministerial level.

[Committees of the House, April 29th, 2004]

Mr. Speaker, it is indeed a pleasure to rise today to take part as we debate the motion for concurrence in the 25th report of the Standing Committee on Procedure and House Affairs.

In that regard, of course, it has been said many times today that we are very pleased Dr. Shapiro has been appointed as the ethics commissioner. He is a man of great standing. Within the House it certainly appears that there is every confidence he will perform well in his office. We certainly wish him the very best of good fortune in that regard.

As we look back on the history of getting to this point, clearly we see that it has been a very lengthy struggle. Many members today have commented on the fact that it has taken a long time for us to deal with the issues that reflect on our ability to represent the public in an open and transparent way, where in fact the public will have the good faith and the trust that we are operating not in our self-interest but rather in the public interest.

I think that one of the problems we face today, and I know the member for Peterborough has been very active in this regard, is in working to encourage more individuals to participate in the voting process in the election of members of the House and in other elections within our various legislatures. Clearly public cynicism is rampant on many of these issues of the day concerning our ability to act freely and without conflict of interest.

So when we come today to deal with concurrence in this report, clearly it is of great concern to all of us that we make certain we are dealing with this in an appropriate manner and that we are going to increase the transparency and the trust in the public interest.

When one deals with the concept of trust and public confidence, I think the public perception created through the various media outlets is extremely important. We must be very responsible in trying to make certain that when we represent the facts brought before this place, we do our best to make sure that the members of the media and also the members of our constituencies do hear, clearly defined, what steps are being taken to protect their interest.

I believe that in the process of disclosure it is very important that we have guidelines. Although in the past there may not have been problems of any significance with respect to MPs generally, clearly it is important that disclosure be made. I will take a moment to reflect on a passing thought as we look at the disclosure requirements. Some of the requirements tend to suggest at the moment--and I will accept clarification on this--within the report that a member who has a private corporation and is unable to or chooses not to dispose of that interest in the private corporation would in fact have to place that corporation in a trust in order to be able to sit in the House and deal with the affairs of government.

My concern in that regard relates to whether something of this nature might tend to deter someone who has assets of that nature from coming forward into the House and participating in the legislative process. I know that if members participate as parliamentary secretaries or as ministers and fall into that category, they have an opportunity to be compensated for the cost of maintaining a trust of that nature.

I do not believe that any similar provision is available to any other member of the House. I am not aware of any at this moment. Although it may not fit appropriately in a code per se, I would think steps need to be taken which would appropriately place all members of the House on an equal footing in terms of costs required in order to be in this place.

The possible alternative to that, of course, if there were no compensation for those who would have to place their assets in trust, could be that one might be able to look at it as another cost of doing business. Therefore, through amendments to the Income Tax Act, one might be able to appropriately dispose of such a concern.

We in this House do not wish to discourage those who would come forward and who do have significant assets. I know that we do see within the House a great deal of concern about one's property and other assets, and sometimes it is used to take political advantage by certain inferences that are made within the House. I think it is quite inappropriate to make adverse inferences if in fact people are fully open and clear as to what assets they possess. Therefore, I think that in this code of conduct we will be able to deal with this issue in a manner that I think is acceptable. I think there will be full and complete disclosure, which should, I believe, relieve members of the concern that they would be unduly attacked for having assets in their name.

I believe that a code is just that: a code. Each of us must respect the code. It is like the hon. member for Elk Island said: stopping at the crossing when the light shows that he should not cross. I think each and every one of us has a responsibility not just to respect and reflect the actual words within the code but to actually think about and reflect the intent of the code as we go about our work here.

In the past, clearly, for the most part there have been no such violations. Obviously, as has been pointed out, more of those violations that have a higher profile have come from a cabinet or ministerial level.

At this juncture I believe we are much more aware and respectful of those who deal in these issues, but clearly the public is demanding for their trust and confidence that we take every available step to meet the needs as seen. The standards we have here must always be maintained at the highest level and we must always put the public interest ahead of our private interest.

As we look at the history of getting the code to this point, it is quite incredible. I think it has been more than three decades now that the House has struggled with this issue of how to deal with a code of conduct. On and off over that time, we have seen that both Liberal and Conservative governments have dealt with and considered this concept.

In 1997, as has been previously mentioned, there was the Milliken-Oliver committee, a special joint committee that recommended the independent ethics commissioner and a code for members of this House and the Senate. That was an extremely interesting committee, because it did ultimately provide us with a report that drew on the experiences of others, both in other provinces and in other countries of the world. It was a rather comprehensive report. Since 1997, obviously we have spent a lot of time thinking about and trying to develop a code, but it has always seemed to bog down in the process of debate.

Clearly today we are at a crossroads. We have come to the point where there is general consensus that this is the appropriate way to go and that the code does reflect the best we have been able to gather from other jurisdictions. Simply put, I am very supportive of the principle and I know that members of my constituency are supportive of anything that will advance the public trust.

I believe the presentation of the motion for concurrence is one that deserves the support of the House and one that we should be able to support.

As we look at the office of the ethics commissioner, I believe the ethics commissioner will be given the opportunity to do what I think all of us would hope an ethics commissioner ought to do, and that is to independently deal with the concerns of the House, member to member or side to side, as we may find ourselves from time to time; that the ethics commissioner will be able to make an appropriate assessment; and that when the ethics commissioner assesses a complaint or a concern that it will be given the good judgment of the ethics commissioner as an independent person to determine whether a complaint is frivolous or done for some type of partisan politics that does not actually go to the foundation of the code, and that is to have the public interest served above private interests.

I believe that provision will take away some of the concerns that some members had that complaints might just simply pile up and that the process of actually getting to the bottom of a legitimate claim would not be well-served.

In this case, with the provisions that are in this report, I believe the ethics commissioner can very easily deal with those issues that he believes are simply not well-founded and grounded in legitimacy and have them disposed of, without causing any member within the House undue concern.

Today I am very pleased to present my views and thoughts on this matter. I am pleased that within the House we seem to have come to a consensus on going forward with this code. I am pleased to support this code of conduct and the concurrence in this motion as it goes forward today.

[Criminal Code, April 28th, 2004]

Mr. Speaker, I am pleased to take part in today's debate on Bill C-12, an act to amend the Criminal Code, the protection of children and other vulnerable persons, and to make changes to the Canada Evidence Act.

I will speak to a part of the bill that has not received a great deal of attention thus far but contains important provisions for children and other vulnerable witnesses.

Bill C-12 contains a range of reforms to the Criminal Code that would make it easier for a child or other vulnerable persons who are witnesses to provide their testimony at criminal trials. These provisions build on the current Criminal Code provisions that recognize that participating in the justice system as a victim or witness is not a pleasant experience. It is usually a very traumatic experience, particularly for children.

The proposed changes in Bill C-12 recognize that despite the progress that we have made in developing a justice system that is responsive and sensitive to the needs of children and all victims and witnesses, more still needs to be done.

Our law currently permits the judge to exclude members of the public from the courtroom in some circumstances. For example, this could be ordered where a child victim of sexual abuse is giving his or her evidence.

In addition, a publication ban may be imposed to protect the identity of young victims. A support person may accompany a young victim and some young victims may give their evidence from behind a screen or on closed-circuit TV. The law also protects a young victim or witnesses of a sexual or violent offence from having to face questioning from an accused who represents him or herself.

Videotaped interviews are also permitted to be used as evidence where the child adopts the videotape at the court proceeding.

The current provisions when they are used work well. However, due in part to the fact that some of these provisions have been amended over time rather than as one comprehensive package, we now have a different series of tests for the use of various testimonial aids, different offences to which they apply and different age categories of young persons who can benefit.

Obviously the bill goes a long way toward resolving some of these concerns and hopefully I will have a chance to explain it at another sitting of the House.

[First Nations Fiscal and Statistical Management Act, April 26th, 2004]

Mr. Speaker, I am pleased to rise today to debate Bill C-23, the first nations fiscal and statistical management act.

What we have before us is truly unique. The proposed legislation is first nation initiated; its development was first nation led; and the institutions it would create are first nation controlled.

I believe that all members will agree that we want to improve the quality of life in first nations communities. A number of steps have been taken over the past few years to begin removing barriers to first nation economic progress, self-reliance and self-government, but much more is needed and is needed now. The status quo is not acceptable.

Rather than wait for government, certain visionary first nation leaders took it upon themselves to address the gaps in fiscal powers and institutional support. They have devoted an enormous amount of time and energy to developing this initiative. Many months ago, they turned to the government for support in establishing its legal foundation, a particularly important aspect of the initiative as first nations seek to attract investors and business development. This is the purpose of Bill C-23.

Bill C-23 is a lengthy and technically complex bill, and I cannot hope to address all of its provisions in the time I have been allotted today. However I would like to quickly review the key elements in the bill.

As a first step, Bill C-23 defines first nation property taxation powers in much more detail than does the Indian Act. The bill also features provisions for property assessment, rate setting and budget based expenditure systems that continue first nation provincial property tax harmony while reconciling the interests of first nation governments and those of their taxpayers.

Bill C-23 provides for the evolution of the existing Indian Taxation Advisory Board into the first nations tax commission. This commission will build on the work of the Indian Taxation Advisory Board which has helped 98 first nations enter the field of property taxation since 1989. I should note that those first nations are now collectively raising more than $40 million annually in tax revenue.

Under Bill C-23, ratepayers will be assured a role in policy development and an improved system for hearing appeals and resolving disputes than is the case under the present Indian Act.

The proposed legislation will also clarify certain borrowing powers of first nations and create a first nations finance authority. Through the work of this institution, first nations, like other local governments in Canada, will have access to bond markets to raise long term private capital to finance the construction of roads, sewers, water and other types of infrastructure. This will be a first for aboriginal people in the world.

Assisting first nations to access the bond market will help them participate in the economic mainstream, better balance taxpayer costs and benefits, and realize a better return on tax dollars. The cost of borrowing will be reduced 30% to 50% compared to the current situation.

The first nations finance authority is modelled on the Municipal Finance Authority of British Columbia, which has 30 years of experience and a triple A credit rating. The proposal has been endorsed by major underwriters and credit raters and is expected to raise $125 million in private capital over its first five years of operation.

There is yet another gap that needs to be addressed, a gap in the financial management capacity of first nations. To this end, Bill C-23 will create a completely new institution, the first nations financial management board, which will offer a full range of services to support first nations financial management and accountability. This will be accomplished through the establishment of financial standards, promotion of capacity development, and ensuring that the rigorous systems and assessment services are in place to maintain the confidence of the markets.

Finally, Bill C-23 provides for the establishment of first nations statistics to fill the current gap in reliable data and well targeted analysis on first nations populations, economic growth and other matters. Good quality information is needed to support first nations decision making both at the national level and locally. To this end the statistical institute may work with the first nations, federal departments, Statistics Canada and provincial statistical agencies to help the first nations meet their information needs while at the same time building the shared data required to support effective Canada first nations developmental activities.

Many first nations, particularly the 98 that already have a tax system in place, will be quick to opt into the borrowing regime and other services provided through the bill. Other first nations may take more time to take up these opportunities and still others may decline them outright. Participation in this new initiative will be completely optional, a very key part of the bill.

First nations choosing not to proceed with property taxation or borrowing under the bill may still benefit from the specialized advisory and support services regarding financial and statistical management.

As we can see, each of these institutions, the tax commission, the financial authority, the financial management board and the statistical institute has a unique independent and professional role.

This is important legislation for first nations. Together, these institutions will provide first nations with the right tools needed to foster a business friendly environment, investor confidence, economic growth and sound governance. Bill C-23 will help participating first nations advance into the economic mainstream by giving them the practical tools already used by other governments. It will help them to ensure that the first nation real property tax financing, financial management and statistical systems are harmonized in a way that facilitates shared efforts with other governments. It will provide better representation and more certainty for on reserve taxpayers and a better return to the community as a whole from the tax dollars raised.

As I noted at the outset, the proposed first nations fiscal and statistical management act is a first nations solution. It was developed through the National Table on Fiscal Relations, a body established some five years ago as a consultative forum between the Assembly of First Nations and the Government of Canada.

Key players in Canada's financial markets, such as the Royal Bank of Canada, Dominion Bond Rating Services and Moody's Investor Services, have provided valuable input on the structure and operations of these institutions.

I want to conclude my remarks with this thought: Economic development is the road ahead. This is the path sought by first nations to improve their quality of life. Many first nations have begun this journey but have encountered obstacles which we can help them remove.

In order to seize control of their own economic future, first nations do not need to have their hands held, but they cannot succeed with their hands tied. These initiatives in the area of fiscal management are aimed at untying those hands. Let us support the bill.

[International Transfer of Offenders Act, April 26th, 2004]

Mr. Speaker, it is a pleasure for me to speak in support of Bill C-15, which is the international transfer of offenders act.

The amendments introduced in Bill C-15 would modernize the Transfer of Offenders Act to reflect the many changes that have occurred since this legislation was proclaimed in 1978.

The provisions contained in Bill C-15 would allow Canada to negotiate the transfer of offenders in a manner consistent with current international standards and would provide a mechanism for cooperation in criminal justice matters.

To elaborate, the Transfer of Offenders Act allows Canada to implement treaties with other countries for the transfer of offenders. Under the terms of these treaties, Canadians convicted and sentenced in a foreign jurisdiction would be allowed to serve the remainder of their sentences in Canada. Similarly, foreign nationals convicted and sentenced for crimes committed in Canada would be permitted to return to their home country and to serve the remainder of their sentence there.

I should make it clear that the terms of the act would apply only to individuals actually convicted of a criminal offence and would not apply to individuals held in remand or detention, awaiting trial or appeal. In addition, I would like to note that transfers, pursuant to the Transfer of Offenders Act, require the full consent of the offender, as well as the receiving and the sending state. Without the full consent of all parties, an international transfer cannot proceed.

Some might wonder why we should occupy ourselves with the plight of Canadians who find themselves incarcerated in a foreign jurisdiction. Why not let them stay there and do their time? Why not let the experience be a lesson to them and a warning to others who might be considering criminal activities while abroad?

To those who would respond in this way, I would draw attention to two interrelated objectives of the transfer of offenders act, namely, public safety and the humane treatment of offenders. These objectives, which derive from Canadian criminal justice policy, recognize that the vast majority of offenders will eventually be released back into the community and that the best way of ensuring public safety, in the long term, is to prepare them for their eventual return to society as law-abiding citizens.

I am well aware that there are some who would challenge the notion that Canada's approach to criminal justice generally, and corrections specifically, is effective in protecting Canadians from crime.

To those who take this view, I would point to public records showing a steady decline in crime rates across most of Canada. At the same time, I would invite critics of Canada's criminal justice policy to examine the impressive success rates of offenders released from our penitentiaries while under supervision. These results are a product of sound, evidence based policies and programs for the treatment of offenders, and clearly they work. The Transfer of Offenders Act ensures that Canadians sentenced abroad and who elect to return to Canada while under sentence will be managed in accordance with the policies and programs proven to reduce the long term risk to the Canadian public.

During the debate on Bill C-15, we have become aware of the issues facing Canadians sentenced abroad, often under difficult conditions. I am referring specifically to factors relating to sanitation, health care and nutrition. I am also referring to the added burden associated with the differences in culture and language and to the hardship of being far removed from friends and family. The Transfer of Offenders Act responds to these humanitarian considerations while protecting public safety by addressing the offender's criminogenic factors before sentence expiry.

Let us be clear. The Transfer of Offenders Act is not based on some well-intentioned but misguided humanitarian notion. The realities are that Canadian offenders sentenced abroad would in all probability be deported back to Canada following the end of their sentence without any supervision and lacking the benefit of rehabilitation programs.

The treaties enabled by the Transfer of Offenders Act do not allow offenders to somehow evade justice. These treaties allowed by the act stipulate that the receiving state shall neither interfere with the finding of guilt nor lessen the sentence handed down by the sentencing state.

At the outset, I noted that the Transfer of Offenders Act dates from 1978, which is some time ago. Principles of good governance require that legislation be reviewed from time to time in order to evaluate its continuing relevancy and effectiveness. Consequently, the Transfer of Offenders Act was the subject of broad consultation, which included over 90 private and public sector agencies.

Pursuant to this review, there was strong support for the Transfer of Offenders Act. However, the consultations also revealed that the act could benefit from some amendments, which are included in Bill C-15.

The amendments introduced in Bill C-15 can be placed in one of three categories. First are amendments that reflect the traditional treaty principles that have developed over time. Second are those that address the gaps in the Transfer of Offenders Act. Finally, the last category of amendments contains the proposals that would contribute efficiencies to the current process.

Allow me to cover the main points covered by these reforms in Bill C-15. First, the purpose and the guiding principles of the act are identified. This is an important feature of modern legislation. It helps promote consistency within Canada's body of criminal law, namely, the Criminal Code and the Corrections and Conditional Release Act.

Specifically, the purpose of the proposed new international transfer of offenders act is:

to contribute to the administration of justice and the rehabilitation of offenders and their reintegration into the community by enabling offenders to serve their sentences in the country of which they are citizens or nationals.

Next, the international treaty obligations and principles considered legally essential are included. These principles include those that ensure offenders have access to processes consistent with natural justice and due process. Enshrinement in the act of legally sound principles is necessary to ensure that the courts do not strike down the transfer process that could result in the unsupervised release of an offender into the community.

Eligibility criteria have been broadened to permit an increased range of Canadians to be transferred. Presently, young persons under probation, children, and mentally disordered persons are ineligible for transfer under the Transfer of Offenders Act. Amendments introduced in Bill C-15 would make these individuals eligible for transfer. This proposed amendment is in line with the humanitarian objectives of the new international transfer of offenders act.

Clarification on the decision making provisions has been included where provincial consent is required for the transfer of offenders on probation, provincial parole and provincial temporary absence and for offenders under a conditional or an intermittent sentence. Also, updated provisions are included, which will result in the consistent and equitable sentence calculation for transferred offenders and will ensure the equitable treatment of transferred offenders when a pardon is granted or when a conviction or sentence is set aside or modified.

As well, reforms have been introduced to allow the negotiation of transfers on a case by case, ad hoc basis between Canada and states with which Canada has no treaty or jurisdictions, or territories that are not yet recognized as states, or other entities such as Hong Kong or Macao. I would just note that in light of today's rapidly changing political landscape, this is a particularly relevant feature.

There are other primarily technical amendments introduced in Bill C-15, which will strengthen the provisions of the current Transfer of Offenders Act, but time does not permit me to elaborate on them.

However, there is one last point related to the reforms introduced by Bill C-15. Most states are convinced in today's global climate of the need to work multilaterally and bilaterally to address criminal conduct in a way that is in harmony with longstanding principles of territoriality.

In the absence of an instrument to enforce foreign laws, crime could be encouraged rather than prevented. By working together with others through the transfer agreements enabled by the new international transfer of offenders act, Canada will have the flexibility to work with a broad range of countries and other entities in matters of criminal justice in a way that would lead to public protection through the safe and gradual reintegration of offenders into society.

In conclusion, let me say that Bill C-15 builds on a proven and effective correctional policy, a policy that delivers public safety by treating offenders fairly and humanely during their period of incarceration and by preparing them for their eventual safe reintegration into society. As such, the reforms introduced through Bill C-15 demonstrate Canada's enduring commitment to maintaining public safety and a willingness to work cooperatively with our global partners on criminal justice issues.

Finally, I would like to thank the members of the standing committee for their perseverance and responsiveness in the examination of Bill C-15 throughout their deliberations and for presenting a bill that is worthy of support within the House.

[International Transfer of Offenders Act, April 26th, 2004]

Mr. Speaker, in listening to the hon. member, it sounds like we are taking a very progressive step but we seem to not necessarily include all the countries of the world in this process.

Does the hon. member have any suggestions as to what we might be able to do to further advance the cause as it relates to other countries in the world that may not be specifically included through an international treaty?

[Criminal Code, April 22nd, 2004]

Madam Speaker, it is a pleasure to participate in the debate, although I see the time is somewhat limited this evening.

I was at least encouraged to hear the previous speaker advance the fact that now he is giving a selection of items that were clearly referred to as examples that would be included as serving the public good in Bill C-12. I think we are starting to make some progress. We are starting to see that in fact we cannot start off with a bill that has absolutely no means of allowing people to deal with that issue, and the phrase “public good” is an excellent way of expressing that. The hon. member has come a long way toward accepting that principle.

Today I find this a special opportunity to discuss and debate further the issues that are so important, as everyone has pointed out today. I believe this discussion, although it has gone on at some length, should go forward with the concept of trying all ways and means that are meaningful to protect our children while preserving all the rights that are within our charter. I say that of course because Bill C-12 does bring forward, not just child pornography reforms in terms of criminal law, but actually goes beyond that and brings forward other reforms which better protect those who are most near and dear to us, our children, and those people with disabilities.

Bill C-12 is much needed and welcome and I look forward to the reforms that it will introduce. Each of us wants to make sure that the criminal law meets the needs and concerns of Canadians, especially those who are most vulnerable, which includes those with disabilities and our children.

Although the previous speaker concentrated on one particular area of the bill, we must understand and appreciate that there are a number of areas that are being addressed. First, the bill deals with the concept of strengthening our existing child pornography provisions in two respects. One is to broaden the definition of written child pornography to include material that is created for a sexual purpose and predominantly describes prohibited sexual activity with children and the other would narrow the existing child pornography defences so that there would only be one defence of public good.

Within the scope of public good, the previous speaker's commentary about dealing with science, education, law enforcement, the administration and process, the medical issues that arise from this, and the entire study process, this is developing the idea of public good. I am very happy to see that there is some movement in my hon. friend who previously spoke to this concept, because up until this point there was a desire on the part of that party to simply say that there should be absolutely no defence.

I think those members are starting to get the idea. They are starting to develop the concept that there are legitimate uses that have to be there. There have to be opportunities to educate our people to deal with the medical realities and to go through and deal with the administration of justice.

I think it is very important that we are making progress in that area. In narrowing the defences to the one defence of public good, is something that will better serve the public interest, but I think there is a limitation on that.

As one would argue for public good as a concept, one would also have to put a cap on that because we cannot let it go beyond a certain point. The point that has been determined is that one has to weigh the entire public good against the risk of harm that it would pose. Therefore, when it outweighs the benefit, that is the public good defence, to society, then in fact it would be limited.

Second, the bill also proposes to create a new prohibited category of sexual exploitation of young persons. I think the examples that were given by the previous speaker speak to those points. What we are concerned about is the exploitation of children.

[Criminal Code, March 22nd, 2004]

Madam Speaker, I am pleased to speak on this private members' bill, Bill C-221, an act to amend the Criminal Code regarding the sentence of imprisonment for life.

I am aware, and I am sure the Chair is aware, of the time and effort that the hon. member for Calgary Northeast has invested in bringing forward this legislation. I appreciate the opportunity to address this criminal justice issue.

Bill C-221 seeks to accomplish two related objectives.

The bill first proposes that for all offences which carry a maximum penalty of life imprisonment, life imprisonment be defined as imprisonment for the rest of the offender's natural life without any opportunity for parole.

Second, the bill proposes to repeal section 745.6 to 754.64 of the Criminal Code, which is commonly referred to as the faint hope clause. These provisions allow offenders to apply, after 15 years of imprisonment, to have a judge and jury review their parole ineligibility period for possible reduction.

It is crucial to recognize at all times that sentencing is a complicated field, where even a minute change in one of the components can result in serious and unforeseen consequences. Each and every part of the complex and interrelated system must work in co-ordination with the other components to ensure public protection and the safe and effective reintegration of offenders.

In this light it is apparent that the proposal to incarcerate all offenders sentenced to life imprisonment for the remainder of their life is a proposal which would violate the basic purposes and principles of sentencing. In a matter where precise tools are required, this proposal would be described as a blunt instrument.

In this regard it is important to note that a maximum sentence of life imprisonment is not restricted to only the violent offences in the Criminal Code. In fact there are over 40 offences to which this bill would apply. Reducing or removing the discretion of the courts in sentencing makes the criminal justice system more arbitrary and expands resources unnecessarily on incarceration when other measures may be less expensive and more effective.

The guiding principles related to sentencing are explicitly set out in the Criminal Code. Most relevant is section 718.1, which provides that every sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. In other words, justice is best served when the judiciary has the necessary discretion to ensure that the punishment fits the particular crime and offender. Moreover, in paragraph 718.2(d) of the code it states that “an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances”.

A key element of effective corrections is distinguishing between offenders who need to be separated from society and those who can be safely and better managed in the community. Parole, first introduced in 1899, has proven to be an effective tool in the application of these principles and in reducing recidivism.

The “throw away the key” aspect of the bill before the House today is a clear contradiction with the principles of sentencing that reflect basic Canadian values and the results of carefully conducted research. This research has shown that the extension of imprisonment by itself does not reduce crime. Most Canadians believe that many people who commit crimes can learn to be better citizens and contribute to society.

This belief is correct. Experience has shown that most offenders are more likely to become law-abiding citizens if they participate in a program of gradual, supervised release.

Canada already has one of the harshest systems for lifers in the western world. On average, first degree murderers serve an estimated 28.4 years in jail, approximately twice as much as is the case in many other western countries.

In Canada, life means life. A life sentence remains in force for the offender's natural life, and statutory release is not available to those offenders. Some inmates serving life sentences or who have been designated as a dangerous offender will never be released. Where parole is granted, the offender is supervised for the rest of his or her natural life, and any violation of the conditions of parole may lead to reincarceration even if no further crime is committed.

The proposed amendments in the bill will ensure an ever increasing number of incarcerated federal offenders with no hope of release. This will seriously compromise penitentiary security and the costs related to the increased correctional population would be significant.

The bill under consideration today also seeks to repeal sections 745.6 to 745.64 of the Criminal Code, known as the faint hope clause, which allow offenders to apply after 15 years to have a judge and jury review their parole ineligibility period for a possible reduction.

The history of these provisions begins in 1976, when Parliament formally abolished capital punishment and replaced it with mandatory life sentences for high treason, first degree murder and second degree murder. Parole eligibility periods were established at 25 years for high treason and first degree murder and 10 years for second degree murder, with the judge having the power to increase the period for up to 25 years.

At the same time, Parliament also introduced the so-called faint hope clause for those convicted of murder where parole eligibility was set at more than 15 years. In fact most eligible offenders convicted of murder do not apply for judicial review. In the time between the introduction of the judicial review provisions in 1976 and December 2003, 652 murderers have served more than 15 years, and there have been only 134 applications. Of those 134 applications, 107 offenders have had their parole ineligibility reduced and 87 have actually been granted parole.

In 1977 the government took significant steps to tighten the judicial review process for lifers by instituting several measures. Today, offenders convicted for multiple murders are excluded from judicial review and their parole eligibility period is automatically set at 25 years. There is a screening process whereby a judge must decide if the application has a reasonable prospect of success or else it may not proceed. The jury must be unanimous as opposed to the previous standard of two-thirds. Information from victims must be considered at the judicial review hearing if provided.

It must be made clear that judicial review is not an early parole hearing and does not result in the release of the offender. It only determines if the offender may become eligible to apply to the National Parole Board for parole.

The judicial review process serves to provide a degree of hope for the rehabilitation of convicted murderers, and thus serves to protect prison guards and recognizes that the public interest is not served by keeping offenders in prison beyond the point in the sentence where they can safely and gradually be reintegrated into society.

The government is fully committed to improving mechanisms that enhance the public protection. That is and will continue to be of paramount consideration for the government. However, the amendments proposed by the bill would run counter to the principles and objectives that underlie the effectiveness of our criminal justice system. That is why the bill before us is not the way to go, and should not be supported.