Paul MacKlin

[International Scientific Awards, May 9th, 2003]

Mr. Speaker, I am pleased to rise in the House today to congratulate the recipients of the International Scientific Awards.

At a ceremony this morning the Minister of National Defence presented 12 Canadian scientists from Defence Research and Development Canada, the National Research Council and the Department of National Defence with their awards.

These awards are presented under the technical cooperation program. This program promotes collaborative defence science research between Canada, the United States, Australia, New Zealand and the United Kingdom.

The work of these scientists is yet another example of Canada's commitment to collaborate with our allies in sharing knowledge and expertise. I ask the House to join me in congratulating the recipients of this prestigious award.

[Criminal Code, May 8th, 2003]

Mr. Speaker, I am pleased to speak to Bill C-416, an act to amend the Criminal Code and the Youth Criminal Justice Act (sentencing principles), which has been introduced by the hon. member for Portage--Lisgar. The bill focuses on the sentencing of aboriginal offenders and it would result in the removing of the obligation of the court to consider the particular circumstances of aboriginal offenders when passing sentence.

Let us look at the history. On July 13, 1995, Bill C-41 received royal assent. It was proclaimed in force in September 1996. In Bill C-41, Parliament for the first time set out the purposes and principles of sentencing. One of the new principles, found in section 718.2(e), was that:

...all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

The effect of this private member's bill would be to eliminate the specific reference to aboriginal offenders in the Criminal Code as well as in the Youth Criminal Justice Act. I cannot support this proposal.

The purpose of this provision is to encourage restraint in the use of imprisonment for all offenders. Codified for the first time in Bill C-41, the idea of encouraging restraint in the use of incarceration is not new. A white paper published under the authority of the then minister of justice in 1982 included in its “Statement of Purpose and Principles of Criminal Law” that “in awarding sentences, preference should be given to the least restrictive alternative adequate and appropriate in the circumstances”.

Restraint in the use of imprisonment has been endorsed by numerous other commissions and in various law reform reports. By the time Bill C-41 was debated, however, the need to consider restraint had been given increased importance as a result of Canada's high rate of incarceration when compared to those of other industrialized nations.

According to Council of Europe statistics published on September 1, 1993 for 1992-93, Canada incarcerated about 130 inmates per 100,000 people, compared to the range in western Europe of about 51 in Holland and 92 in the United Kingdom. Furthermore, the rate at which aboriginal Canadians were being incarcerated was even higher, in the neighbourhood of 785 per 100,000, or about six times the rate of the general population. It is worth noting that if aboriginal Canadians were jailed at the same rate as non-aboriginals, Canada's overall incarceration rate would be comparable to those in most western democracies.

There is a longstanding concern by the government and by the Parliament of Canada with the overrepresentation of aboriginal people in the criminal justice system. For example, this was addressed in “Taking Responsibility”, the 1988 report of the Standing Committee on Justice and Solicitor General; in the 1987 report of the Canadian Sentencing Commission; in the 1991 Department of Justice discussion paper, “Aboriginal People and Justice Administration”; in Law Reform of Canada Report 34, “Aboriginal Peoples and Criminal Justice”; in parliamentary debate on Bill C-41; and finally, in the Speech from the Throne on January 30, 2001, opening the first session of the 37th Parliament.

As I stated previously, section 718.2(e) of the Criminal Code applies to all offenders, not just aboriginal offenders. Parliament intended that it, along with the purpose and other principles found in section 718 of the Criminal Code, would breathe life into the notion of restraint in Canada. As I previously stated, the bill before us today would eliminate any reference to aboriginal offenders and I simply cannot support that change.

The purpose of including this specific reference to aboriginal offenders in the Criminal Code and more recently in the Youth Criminal Justice Act was to signal Parliament's concern over the especially high aboriginal incarceration rate and the socio-economic factors that contribute to this. It requires sentencing judges to be sensitive to these matters and for judges to consider the appropriate alternative sentencing processes, including restorative, culturally sensitive approaches such as sentencing circles, healing circles and victim-offender mediation.

There is no doubt that many of the accused who appear in our criminal courts exhibit some of the same socio-economic deprivations of poverty, substance abuse, lack of education and low self-esteem that one finds in all too many aboriginal Canadians. However, as the Supreme Court of Canada confirmed in its 1999 decision in Regina v. Gladue:

--aboriginal offenders differ from those of the majority because many aboriginal people are victims of systemic and direct discrimination, many suffer the legacy of dislocation, and many are substantially affected by poor social and economic conditions.

The court is therefore required to acknowledge that these special factors are to be considered and to consider what role they may have played in bringing that aboriginal offender before the court and to consider the full range of sentencing options that are appropriate in the circumstance. In other words, it provides an individualized sentence that is appropriate for both the offence and the offender. I fully support that approach.

In conclusion, there is no doubt that aboriginal people are vastly overrepresented in the Canadian criminal justice system. The government is continuing to make efforts to change this. However, the causes of overrepresentation involve complex social and economic factors of poverty, addiction and disadvantage. They are historical and not easily dealt with.

It appears that the courts are supporting the sentencing provisions in the Criminal Code that encourage restraint in the use of incarceration and I say for all offenders. However, the government continues to be concerned about the incarceration of aboriginal offenders and will continue to make efforts to ensure that aboriginals are not overrepresented in our prisons.

The references to aboriginal offenders in the Criminal Code and the Youth Criminal Justice Act are one part of the overall plan to reduce this overrepresentation. At the same time, the government is focusing on the root causes of crime so that long term changes will result. Examples are the funding of programs for aboriginals through the national crime prevention program, the aboriginal justice strategy and the youth justice renewal initiative.

The government is committed to working with aboriginal peoples to ensure that those changes we need within the system result.

[Supply, May 8th, 2003]

Mr. Speaker, in response to the member's question, of course we take away rights from individuals when they commit a crime.

However, who was it who established the rights we are going to take away? It was this place, this Parliament, through the Criminal Code, that determined what rights we would address for various crimes. We are the ones who set out the sentences, the penalties and the options that are available. It is those of us who gather here who have made those decisions. We set out the limitations and gave the courts what we believed were the appropriate ranges of sentences that should be applied in each individual case. I think it is very clear that we set out what those responses were to be.

Let us go beyond that. What the court has clearly stated is that we did not have the right under the charter to take away those voting rights. What we have to do in this place is re-examine this to see what we as a legislature can do.

I still believe, and I do not believe that I will be doubted, that this House of Commons, this Parliament in its totality, is the place where we make decisions. We have the ultimate authority. It is not the court that holds the ultimate authority and, therefore, to criticize the court is inappropriate in this case.

[Supply, May 8th, 2003]

The hon. member says no. I think it is very important that we understand that part of the public good is in prosecuting those individuals. In so doing the police need to have access. They need to be able to investigate and see the pornographic images in order to to prosecute these people.

Those members of the opposition who choose not to accept this have to be understanding of the sensitivities and the problems that are involved in the prosecution of these offences. There is no answer to say that there is an absolute and complete prohibition on pornography. We have to leave a way and a means, for example, in dealing with it in medical institutions, research institutions. It would not be allowed unless the defence was available of the public good because it is for the public good to deal with it in that fashion.

We do have disagreements in the House but the House has the ultimate authority to go forward. The member talked about section 33 of the charter. I believe that was put in the charter for good reason. It has been used within provinces to date. I am not aware that it has been used at the federal level, but from that perspective it is there to provide a safety valve if a situation were to arise where we would not able to react as a legislature in an appropriate fashion quickly enough. That at least is another way and means to deal with the issues of the charter.

However we must remember what that does. When we deal with section 33 of the charter it effectively takes away the other benefits that the charter was originally set out to give. What we would effectively be saying is that notwithstanding all those other principles we are going forward with this other perspective.

It is very clear that section 33 of the charter does have a valid reason for being there. Yes, it has been used and may be used in certain circumstances but it must be used with care because those principles, as I said earlier, are either respected or they are not. I believe we should always try to respect the principles that form the basis of the charter.

[Supply, May 8th, 2003]

Mr. Speaker, as legislators, where do we fit in the entire perspective of the charter? As a government, what we are doing now is what we will continue to do, and as I stated in the House today, we are very clear. We do not disagree with the fact that child pornography is wrong. We are against child pornography.

However what we are trying do, within this legislature, is to find an effective way that meets a number of interests. I know that sometimes people look at the way in which we are approaching it in Bill C-20. They refer to the fact that we are using and have put in the only defence, a public good defence. They look at that and ask how anything about pornography can be good. I do not disagree with that. There is no good in pornography itself.

The question that we are really struggling with is freedom of expression. How do we deal with the ability of, for example, those who teach in a university, to teach about pornography? How do we do that if in fact it is absolutely and completely illegal to even talk about pornography? It cannot be discussed. The police officers would not be permitted to deal with it.

[Supply, May 8th, 2003]

Mr. Speaker, the motion asks the House to call upon the government to bring in measures to protect and reassert the will of Parliament against decisions of the courts that certain members do not agree with.

With the greatest of respect, I believe this reflects a fundamental misunderstanding of the role of the judiciary in our democratic process. In the proper functioning of a democratic society, it depends on a number of key participants. Under our Constitution, Parliament, the courts and the executive form those key participants. We enjoy a strong and free democracy because the sum of those three parts is greater than the whole.

It is also important that we maintain a healthy and continued respect among Parliament, the courts and the executive. That respect is undermined when parliamentarians engage in unfounded attacks on the judiciary and judicial institutions.

Canadians are justifiably proud of their Constitution. They are proud of the rights and freedoms they all enjoy and which the Constitution protects. They are also proud of our judiciary which has the difficult and sometimes unenviable task of deciding when those rights and freedoms have been violated.

Our judicial institutions are among the finest in the world. Other nations look to us as an example for developing their own judicial systems. Canada is a leader in preserving and promoting judicial independence. I for one, who has had an opportunity to see other countries struggling with this question, want to ensure that the tradition continues well into the future.

Our system of justice, indeed our democracy, is based on the rule of law. The rule of law simply cannot exist without a healthy, vibrant and independent judiciary. We do not have to look much further than the evening news to understand what life is like in countries where there is no independent judiciary, where judges are pressured to toe the government line. I know that is not what Canadians would want to see happen in this country.

The Constitution is the supreme law of our country. Since 1867 we have called upon the courts to interpret and apply the Constitution and they have done so, striking down laws that offend federal or provincial jurisdiction. Since 1982 we have called upon the courts to interpret and apply our Charter of Rights and Freedoms. In many ways this task is different because it involves consideration of the fundamental values and beliefs that we hold dear. However, in many ways the task is the same.

The courts are interpreting the supreme law of our land and applying it in the best way they know how. This is a difficult job. It is not easy trying to figure out what equality, or freedom of expression, or fundamental justice mean.

We have to remember that the courts did not ask for this task; we in this Parliament gave that task to them. Therefore it is simply not right for this chamber to turn around and chastize judges for doing the job that we gave to them.

It is completely consistent with the rule of law that judges be able to strike down laws that are inconsistent with the Constitution. They have been doing it in one form or another for almost 136 years. If they did not have this power, how would the rule of law be protected? How could we require governments to comply with the Constitution? The answer clearly is, we could not.

Underlying this motion is the notion that courts have somehow usurped or limited the role of Parliament by inserting their views on issues of public policy. However it is not the courts that limit Parliament. It is the Constitution, including the charter, which limits Parliament.

We have made a deliberate choice to provide the courts with a role and that role is interpreting the charter and the Constitution. That role includes the power to declare unconstitutional legislation that is invalid. When the courts find that legislation is unconstitutional, the legislature can respond by crafting legislation that contains limits that are reasonable and justified in a free and democratic society as set out in section 1 of the charter. There is certainly no question that with the advent of the charter, the courts have had a more direct impact on the lives of Canadians. As a result, there has been public scrutiny of their decisions.

However to the extent that courts play a role in shaping public law and policy, they do so in accordance with well established rules of constitutional and statutory interpretation, not based on any philosophical preference on the part of the judges. For example, this motion talks about the same sex issue. Some disagree with the court decisions on opposite sex requirement for marriage. They have expressed concern that the courts, rather than the elected members of Parliament, are making decisions to change fundamental social institutions. They are concerned that judges are making law in accordance with their own opinions.

I disagree. In my view, the courts are simply trying to apply the charter in a way that is consistent with the law and past court decisions. Indeed, as my colleague has noted, the courts in all of these cases have gone to great pains to underscore the importance of Parliament. Each decision has given Parliament time to consider how to address the important concerns that have been identified. Rather than trying to usurp or ignore Parliament, I would suggest that these decisions specifically acknowledge the essential role that Parliament has to play in deciding important social questions such as these.

As we all know, last November, the Minister of Justice referred the question of marriage and the legal recognition of same sex unions to the Standing Committee on Justice and Human Rights. He asked the committee to consider policy approaches, to hear from Canadians and to report back with recommendations on possible legislative reform. Members of the standing committee have just recently finished their hearings on this issue and are considering their report and recommendations right now. I understand that the committee hopes to report back to the minister in early June.

I am the first to recognize that judges and their decisions are not always popular but judicial decision making is not about popularity. It is about interpreting and applying the law which, like it or not, happens to include our Constitution. We as legislators have given the courts the task of determining some of the most difficult and divisive legal, social and economic issues of our time. Judges must be independent and free to make those difficult and sometimes very unpopular decisions.

The independence of the judiciary is a key constitutional principle and one that is critical for the public's confidence in the judicial system. Although all members of the public will not necessarily agree with a particular decision, it is important that the public knows that the courts will make decisions free from interference.

Through several international agreements, all democratic governments, including Canada's, have endorsed the basic principles of judicial independence. In adopting these principles of judicial independence, governments and legislatures have agreed to constrain their power to ensure that the judiciary remains independent and has the legitimacy necessary for the continued public support and confidence in the justice system.

Our system of governance has worked well and will continue to work well as we enter the next millennium. The effectiveness of our system of governance depends on a judiciary that is independent and willing to make difficult and sometimes unpopular decisions in accordance with the rule of law.

Parliament is never prevented from amending or introducing new legislation in the public interest so long as that legislation is constitutional. The Canadian people expect no less from us as parliamentarians.

Our Constitution and what it stands for is the underpinning of this entire country. We as a Parliament chose, based on principles some 21 years ago, to add a Charter of Rights and Freedoms to that Constitution. I think each and every one of us has to stop, look at the principles that underline that charter, as it is entrenched, and make a decision; do we believe in the principles that it espouses or not. If we do, there is ample room for us as legislators to go forward within the confines of those principles to legislate and to do the job Canadians expect us to do in a way that is fundamental to the preservation of the society that we know.

[Aboriginal Affairs, May 8th, 2003]

Mr. Speaker, we are of the opinion that the penalty ought to fit the crime. In this particular case that the hon. member raises, there is no question that it applies equally to all.

[Aboriginal Affairs, May 8th, 2003]

Mr. Speaker, with respect to aboriginal offenders, special alternative measures are available in certain cases, but in this case, the murder of a police officer, there is a mandatory minimum sentence and those alternative opportunities will not be available.

[Child Pornography, May 8th, 2003]

Mr. Speaker, clearly we are against child pornography, but in the process of trying to deal with that before our courts, one of the examples of public good is that our prosecutors have to be able to deal with the material in order to prosecute.

[Child Pornography, May 8th, 2003]

Mr. Speaker, clearly we are all in this House against child pornography. I do not think there is any question about it.

We are bringing forward and have now before the committee legislation that we believe will be effective in dealing with child pornography. Despite the fact that the opposition disagrees, we believe it will be effective and we will support that legislation.