Paul MacKlin

[Justice, October 31st, 2003]

Mr. Speaker, I think it is very clear that we have taken active steps to deal with this matter in the Criminal Code. It is clear that we have gone through with chemical tests that are available and that in fact samples can be taken at the roadside, but there are many ways in which we can deal with those who would drive impaired. We think we have a very effective program that works. There will be exceptions, which is unfortunate, but we believe that we have in place something that is very meaningful and works well for the Canadian public.

[Justice, October 31st, 2003]

Mr. Speaker, the hon. member is taking this matter seriously, as do we in the government. We look upon this as being a very important part of law enforcement, making sure that in fact those who would street race do find appropriate penalties for their crime. We examined it, and I mentioned in my speech that day that in fact it is very clear we already have the appropriate provisions in place within the Criminal Code. All we need to do now is make sure that they are properly exercised by the judges within our communities.

[Child Pornography, October 31st, 2003]

Mr. Speaker, clearly everyone in the House is against child pornography. I do not think there is any question about that. We are all interested in doing the right thing to make sure that child pornography is minimized and hopefully eliminated, but the reality is that we have to use sentencing procedures that make sense and that work. The evidence before committee was that minimum sentencing simply does not work.

[Child Pornography, October 31st, 2003]

Mr. Speaker, Bill C-20 is clearly meant to deal with the problem of dealing with child pornography within our society and clearly it does so. It has addressed the Sharpe case and has brought forward a defence that is clear and well defined. It was placed before the House yesterday, so hopefully in the final debate the member will bring forward any concerns he has as the bill goes forward.

[Justice, October 31st, 2003]

Mr. Speaker, this is a very complex matter. The reality is that it has a very solid basis in harm to the individual.

Bill C-38 is intended to deal with that harm responsibly and respectfully, and to ensure that we do everything to diminish the use of marijuana.

For those that produce marijuana through grow ops, we are substantially increasing the penalties. We want to get tough on those who would harm our youth.

[Justice, October 31st, 2003]

Mr. Speaker, clearly, there has been a message that has been sent to youth. It has been a very uncertain message because it has not been absolutely equal across this country.

We have found that in rural Canada there has been treatment that has been different from urban Canada.

Bill C-38 attempts to bring forward a penalty that is appropriate for the crime and that will be enforced. I urge the support of Bill C-38.

[Marriage Act, October 29th, 2003]

Mr. Speaker, the bill before us tonight, Bill C-447, an act to protect the institution of marriage, is a very short bill with one main provision. The provision states “Marriage is the lawful union of one man and one woman to the exclusion of all others”.

That wording should be familiar to members of the House since we had a vote on those very words less than six weeks ago in the form of an opposition day motion. The motion was defeated by a narrow margin. The bill we have before us today is just another way of attempting to bring the very same issue forward again, once more in a rushed manner and in an attempt to short-circuit what would be the responsible approach to this complex question set out by the government in July.

For that reason alone, Bill C-447 deserves to meet a quick end. However I have two further reasons that I would like to set out for my colleagues today.

First, the bill is flawed in that it is not, I suggest, intellectually honest with the House or with Canadians.

Second, the passage of the substance of the bill would have a potential impact on the rights of other minority groups in Canada.

Let me begin by explaining my remark about intellectual honesty. The fact is that the opposite sex requirement for marriage has been struck down by the unanimous decisions of the courts of appeal both in British Columbia and in Ontario. The lower court decision in Quebec also agrees that the requirement is unconstitutional. Yet the bill avoids this very fact, that essential fact that has resulted in this particular bill being ruled non-votable.

Bill C-447 is unconstitutional as Parliament cannot overrule a charter finding of discrimination, or at least not without deliberately doing so with the notwithstanding clause. That was the conclusion that we came to with respect to the opposition motion and it remains the conclusion today.

I am also quite concerned about the importance of protecting minority rights. The Liberal Party has long been known for its consideration of the rights of minorities, not the least of which is the determination to entrench the bill of rights into our Constitution in order to ensure that vulnerable minority groups have equal treatment under our laws. This means all vulnerable minority groups, both those that would be able to get their issue before the government of the day and those without the power to do so into the future.

I was and remain very proud of that philosophy, and its result in the charter. I think of it every time I read a newspaper report that expresses concern that the government is proceeding down this path to giving legal recognition to same sex unions against the will of the majority. I think about it because I, like many members, have come to support this decision on the need to legally recognize same sex unions a bit reluctantly.

I may not be entirely comfortable with the idea of changing the definition of marriage to include same sex relationships. It is still new for me, for many of my colleagues, friends and families, but I am persuaded because of the potential for impact on other Canadian minorities.

Most of us belong or know many who belong to one minority or another. As Canadians we pride ourselves on the ability of Canadian minority groups to maintain their distinct realities, be they racial, religious, linguistic or cultural. Unlike some other countries with a much greater push toward conformity, we respect the right of others to live something that we may not entirely believe in or agree with, so that they will in turn respect our right to live as we choose.

That is not to say that we are a lawless country. On the contrary. With these differences between us, we share a great many of our fundamental values. We are a nation that also prides itself on our rule of law and on our ability to live within those laws.

However, what happens when we as elected legislators ignore our responsibility to also protect those members of minority communities among us who are without voices, without representation? What happens then to the rule of law and to the values that stand behind our charter?

If one minority community can be deliberately discriminated against by law, then are not all minority communities at risk? This issue is not just about changing a definition of marriage with which all of us have grown up. It is about the essence of equality; the inclusion of all within our major social institutions.

I have heard a great deal of rhetoric on this issue lately. I understand and feel the concern that this change is happening too fast and that the majority of Canadians are being asked to see a fundamental change to a central social institution because of a very small minority group that believes they are discriminated against by being left out.

However, what happens when we do that traditional test for any equality issue? What does the issue sound like when we substitute one group for another? Black Canadians cannot marry each other or Catholic Canadians cannot marry each other. Does it not then start to sound as if we are keeping a minority group out of full participation in our society?

If marriage is as fundamental to them as it is to me, should they not also have the choice to decide to publicly demonstrate that same level of commitment to each other that I can choose to demonstrate with my spouse? I have heard some people put forward the objection that nothing is stopping gay and lesbian Canadians from marrying; they just have to marry someone from the opposite sex. That is insulting nonsense.

The medical community overwhelmingly agrees that sexual orientation, whatever its basis, is not as simple as choice. Why would anyone choose to be part of a minority that still suffers significant discrimination, as shown by the high numbers of adolescent suicides and other sad statistics?

As elected legislators, we may understandably first be concerned about those issues the majority of our constituents believe are important. However at some point we must also accept that we take on a larger responsibility beyond that to our own electors. We have responsibility to the future of Canada that is based on the strength of minority communities and their ability to fully participate in and contribute to all aspects of Canadian life, particularly those we find of most importance in our own lives.

Finally, I wish to return to my initial concern with Bill C-447. It is premature and it attempts to short-circuit the responsible approach set out by the government in July to a complex question on which many Canadians have deeply held views.

The government has proposed an approach that is both balanced and respects the important roles of both Parliament and the courts. Its draft legislation creates a balance by fully respecting two fundamental charter rights: equality based on personal characteristics such as race, language or sexual orientation; and freedom of religion.

There are only two provisions. The first defines marriage to be a lawful union of two persons to the exclusion of all others. The second states that “Nothing in this act affects the freedom of officials of religious groups to refuse to perform marriages that are not in accordance with their religious beliefs”.

To further ensure freedom of religion, the bill has been referred to the Supreme Court of Canada, along with certain specific questions. The benefit of referring this draft bill to the Supreme Court for its advice is not in any way to preclude parliamentary process. Rather, it is to clarify for members of Parliament what is possible within the framework of the charter and, in particular, whether freedom of religion remains protected.

I believe the better way to proceed is to get all the information, to come back to the House and to debate the matter fully. Parliament is the place where this matter should be settled.

[Criminal Code, October 27th, 2003]

Mr. Speaker, it certainly is an interesting question to address. Clearly I think governments are continuously looking at areas where in fact we can improve the protection of firefighters and others who protect us as citizens of this country.

Clearly as one evolves public policy, one looks at all of the various aspects that come into play, and clearly what we are doing here today is dealing with a section of the development of public policy that we have found is quite needed at this moment.

We will continue to always look at the broader picture to see what other possible improvements can be made to our system, but at the moment we are quite pleased that we have received such support from the House to bring forward these amendments which directly impact upon each and every one of the firefighters and first responders we are talking about today.

A motion to adjourn the House under Standing Order 38 deemed to have been moved.

[Criminal Code, October 27th, 2003]

Mr. Speaker, it is a pleasure for me to rise again in the House today and to speak to Bill C-32, an act to amend the Criminal Code and other acts.

The first point I wish to make is to say how pleased the Minister of Justice and I have been with the level of support expressed by parliamentarians of all parties with respect to this bill.

Bill C-32 contains some key proposals that aim to sufficiently protect Canadians from new threats. It also seeks to make some technical amendments that are less substantial in nature but nonetheless very important to ensure our criminal laws are clear.

I will begin by focusing on the proposed amendments to the Criminal Code dealing with the offence of setting traps likely to cause death or bodily harm to a person.

Law enforcement agencies and other organizations such as the International Association of Fire Fighters have been voicing their concerns for some time now about the presence of deadly traps, often hidden in homes. Police officers, firefighters and other first responders have indicated a sharp increase in the use of traps by criminals to protect their drug production activities against their rivals and law enforcement officers.

First responders have provided as examples cut away floors close to doors and windows, weapons such as crossbows and shotguns that fire when a door is opened, and incendiary devices designed to destroy evidence of drug production activities.

Since these activities are regularly concealed, often in homes, first responders face unusual risks when responding to emergency calls. These traps constitute an unacceptable additional risk for first responders. The setting of traps has become a serious problem associated with criminal activities involving organized crime. It has become necessary to provide proportional sentences to adequately punish those who use these deadly traps to protect their criminal activities.

During the examination of Bill C-32 before the Standing Committee on Justice and Human Rights, witnesses were heard from the government and the International Association of Fire Fighters. They provided parliamentarians with a closer understanding of the realities of the problem and how to best address it.

Bill C-32 proposes that the current traps offence provision be rewritten in many respects. To begin with, the bill seeks to create a new offence with a tougher sentence of up to 10 years imprisonment for any person who sets a trap in a place used to commit another indictable offence.

If the setting of a trap causes bodily harm to a person, the maximum imprisonment sentence increases to 10 years, but when the trap is set in a place that is kept or used for committing another indictable offence, the possible maximum sentence will be 14 years imprisonment.

In cases where a person's death is caused by a trap, the maximum sentence of life imprisonment could be imposed. Aside from these cases, those who set traps, regardless of the location, will continue to face a prison term of five years.

The purpose of these amendments is to ensure that those who, in order to protect their criminal operations, set traps that could cause death or bodily harm face severe sentences reflecting the seriousness of the offence.

Emergency personnel, such as firefighters and police officers who must respond to situations at apparently safe locations will be provided protection consistent with the danger posed by the setting of traps.

I believe, and I have heard this view expressed by many hon. members of Parliament, that it is unacceptable for criminals, especially those involved in organized crime, to set traps that are intended to injure or kill anyone who enters a building or a place, such as a farmer's field in order to protect their criminal operations.

These traps are set with a complete disregard to the danger that they pose to innocent people, whether they are first responders such as firefighters, landlords inspecting their property, or any person who happens upon the trap.

I will now turn to the set of reforms that address a threat of a different nature. I am referring to the need to ensure the protection of computer networks from cyber attacks.

Bill C-32 proposes amendments to the Criminal Code and the Financial Administration Act to allow the use of intrusion detection systems to protect computers or the data that they contain. An intrusion by a hacker could result in the theft of private or classified information and a virus attack could disable a vital network and destroy important data.

The amendments proposed in Bill C-32 intend to clarify that persons using these types of network security measures are not breaking the law.

These amendments are important not only for the private sector but also for the government. The government has the responsibility to take appropriate measures to protect from cyber attack the information that it is entrusted with, as this information impacts on the privacy of all Canadians.

As a result of comments made by the former privacy commissioner and the Canadian Bar Association with respect to the need to ensure that the application of the provisions will not be overbroad, the government introduced a motion in committee to amend the provision in a way that provides greater clarity in specifying what is meant by quality of service.

I would like to point out that the intrusion detection amendments in Bill C-32 are similar to the provisions that already exist to ensure quality control in the communications industry. The exception that is being created will be restricted to persons using protective measures for the legitimate management of the quality of service of the computer system or for protecting the system against computer related offences.

I believe that all hon. members share the concern of the Minister of Justice, and indeed the government, that as parliamentarians we should always ensure that the government and the private sector have the proper tools to protect computer systems from cyber crime. This is exactly what the amendments to the Criminal Code and the Financial Administration Act included in Bill C-32 would do.

As for the small number of technical amendments that are proposed in Bill C-32, I will highlight the key clarification amendments.

As I mentioned at the outset, these amendments are important to eliminate certain legal uncertainties. The government regularly recommends such amendments to maintain the quality and clarity of our laws.

Bill C-32 proposes to clarify the law with respect to the use of reasonable force on an aircraft in flight. Following a review of Canada's laws in the aftermath of the September 11 terrorist attacks, the government found that further clarity was needed with respect to the use of reasonable force that can be used on board an aircraft in flight outside Canadian airspace.

The amendments proposed in this bill would specify in the Criminal Code the application of the Tokyo convention, which would allow any person on board an aircraft to use reasonable force to prevent the commission of certain criminal offences which could endanger the safety of the aircraft or the people on board.

Other technical amendments are needed to ensure that correct references are made to section numbers and to ensure that consistent terminology is used, particularly between the English and French versions of the Criminal Code and related criminal statutes.

Bill C-32 contains a number of worthwhile amendments that are needed to put proper protections in place, and to ensure an efficient and proper application of our criminal law.

[Criminal Code, October 27th, 2003]

Mr. Speaker, the passage of Bill C-45 represents the final step in the House in making significant reforms to the criminal law as it applies to all organizations. The bill has its origins in the terrible tragedy of the Westray mine explosion. All parties in the House cooperated in ensuring that the bill received high priority.

As members know, the bill when passed will significantly modernize Canadian law by expanding the circumstances in which an organization can be held criminally responsible for the actions taken in its name by its representatives.

To accomplish this it will introduce definitions of “organization”, “senior officer” and “representative” that in combination expand the current directing mind test of liability to include persons who manage important aspects of the organization's business. It will codify rules for attributing criminal liability to organizations that reflect the modern, complex decision making structures of organizations. It will set out factors for a court to consider when sentencing an organization. It will provide optional conditions of probation that a court can impose on an organization.

Well run organizations that take seriously their responsibilities as corporate citizens have little to fear from these changes. They would of course be well advised to review their practices and procedures and how much discretion they give to managers. However, the organization will only be held liable when there has been fault on the part of a senior officer. In offences based on negligence, the senior officer will have to have shown a marked departure from the standard of care that could reasonably be expected.

Where the offence is based on fault other than negligence, for example, knowledge or intent, the organization will only be liable if a senior officer who intends to benefit the organization either is a party to the offence personally, or directs the commission of the offence or turns a blind eye to the criminal activity of others.

These new rules are balanced and fair.

With respect to safety, the bill proposes not to separate out corporations and other organizations, but rather to emphasize the importance of ensuring the safety of workers and the public by introducing into the Criminal Code new section 217.1 making it a legal duty for everyone who directs the work or other persons, or who has the authority to do so, to take reasonable steps to prevent bodily harm to that person or any other person.

Officials of the Department of Justice told the standing committee that in an organization with a complex structure, this new duty would apply not only to the organization itself, but also to individuals who may be personally liable in their own capacity, such as senior officers, low level managers, shop foremen, indeed anyone in the corporation who has the authority to direct how work is to be done.

Ultimately, the chief executive officer and the board of directors are responsible for how work is carried out. Clearly, they are not involved in the day to day decisions on the shop floor, but if they act with total disregard of their obligations with respect to work or worker safety and put pressure on the lower level managers to sacrifice safety to production, they could be personally liable.

I believe that Bill C-45 is already having an effect. Worksite News in August ran an editorial under the title “Bill C-45: What You Need To Know To Protect Your Assets Against The New Criminal Liability For Workplace Safety”. In that editorial the author wrote:

Corporate Canada would be well advised to assess their current OHS programs, training budgets and real commitment to workplace health and safety. An effective program with demonstrated clear communication throughout the organization is not only the way to ensure compliance with your legal obligations, but more importantly it helps to ensure the health and safety of your employees.

I understand that officials of the Department of Justice have met with the Canadian Chamber of Commerce and with the occupational health and safety committee of the Canadian Manufacturers and Exporters to explain the potential impact of Bill C-45. They have also participated in a panel on Bill C-45 and the implications of proposed amendments to the Criminal Code as part of the Health and Safety Law Conference 2003 held in Toronto. All members should be encouraged by these signs that corporations and other organizations are considering their policies in the light of this new duty.

I believe that all parties in the House have approached this bill, the previous debate on Bill C-284 and the hearings of the standing committee last year in a non-partisan way, seeking to improve the operation of the law in this important area. I believe that all parties can take pride in their contribution to developing this bill and that the House can unanimously pass this bill and send it to the other place where we hope it will receive the same expeditious, non-partisan consideration.