Andrew Kania

[Serious Time for the Most Serious Crime Act, June 12th, 2009]

Mr. Speaker, first, I support the bill going to committee for study. However, why are even dealing with this right now? We have one week to go before Parliament breaks for the summer, not to return until the fall. We have an EI crisis. We have a March motion for EI reform that passed the House of Commons, which has been ignored by the Conservatives. We have an isotopes crisis wherein cancer patients cannot get treatment.

There should be a bill before the House on EI, or on isotopes, not this legislation. We only have one week to go. Why are the Conservatives not dealing with the most serious problems facing Canadians right now?

The parliamentary secretary indicated that the reason the bill was before the House was to give people greater confidence in the justice system. We will have to go through this, analyze it and see if there really is a problem. If there is a problem, obviously it needs to be fixed, but we have to identify a problem before we simply start to change legislation that has been in force since 1975, with one amendment in 1997.

We are dealing with section 745 of the Criminal Code of Canada. What everyone has to remember is that when someone gets a life sentence, it is a life sentence. All it currently says under section 745 is that people cannot apply for parole until they serve 25 years. With the faint hope clause in the proposed amendment, all we are discussing is whether someone can apply in theory for parole earlier than the 25 years. If we wish to change the law to, in essence, reduce the standard or eliminate the standard, there really needs to be a problem. What is it?

Under section 745, for first degree murder or high treason, it says, “without eligibility for parole until the person has served twenty-five years”. For second degree murder, a person serves at least 10 years.

The faint hope clause was initially added in 1976, when the death penalty was eliminated and it was part of a compromise at the time. What may be interesting for people to know, or perhaps remember, is that at the time the average sentence for first or second degree murderers, who were not subjected to the death penalty, was seven years before they were eligible to apply for parole. What happened was that changed from seven to twenty-five as part of this compromise.

A lot of our western democracy friends, England, Belgium, a number of others, allow the chance of parole after 15 years. Once again, if we are to change a law that has been in force for years, what is the problem? Where are the statistics? What are we trying to solve, or is this simply ideology, which I do not think is an appropriate way to run a justice system?

With respect to the faint hope clause, substantial amendments came into force under Prime Minister Chrétien's government, under Justice Minister Rock, in 1997. We have to examine those very carefully in coming to this conclusion and answering the question on whether there is currently a problem. Let us look at that.

Under section 745.01, people, after serving 15 years of a sentence, may apply, but they do not have to apply and most do not, to seek to have the years of imprisonment, in terms of their eligibility, reduced. It is not them getting out. It is not saying their sentence is reduced. It is saying that the time period when they can apply for parole is reduced. How do they get there? If we look at the various provisions, they have to apply, pursuant to section 745.6, to a judicial review and they do that in writing. That stage has nothing to do with the victim's family. It is a judge who reads material and then decides whether there is enough reasonable evidence.

The judge has to consider various criteria in determining whether or not this can be talked about. Many people have used incorrectly the example of Clifford Olson or other multiple murderers and said that we cannot let them out. I agree, but they cannot get out under this clause, because subsection 2 says that a person who has been convicted of more than one murder may not make an application. Those people cannot even try under this legislation.

First, a judge, based on written material, has to make a legal determination that on a balance of probabilities, a jury would actually allow for some reduction. The onus is actually on the convicted offender to prove to a judge there is a reasonable possibility this would occur. If the judge finds that there is no such possibility, then nothing happens. If a judge finds there is a possibility, then he goes to a jury.

When the Conservatives talk about the public determining what should occur, or the public having confidence in the justice system, it is the public, not a judge and not the National Parole Board, but the public as represented by a jury, that actually determines whether or not the person is entitled, not to get out of prison, but to have the eligibility for parole reduced from 25 years, in the example of first degree murder, to something lower. It is a jury of our peers that makes that determination. Also, it has to be unanimous. If anybody on the jury determines that it is not appropriate, it does not happen.

Essentially the Conservatives are attempting to take away from a jury of Canadian citizens who have to reach a unanimous decision, the ability to simply reduce the possibility from 25 years to something lower, where the offender can then apply to get parole, but then still have to get the full permission of the National Parole Board. There is no guarantee. It is simply whether it can be done sooner.

Really, the Conservatives are trying to take away power from a jury to unanimously decide that something in theory could be reduced by way of when somebody could apply to the National Parole Board. That is what is happening here.

In terms of what the jury decides, a jury decides various factors. A number of these factors are enumerated. One of them is the applicant's conduct while serving a sentence. This is all new.

There will be hearings. If the bill passes and goes to committee, and I expect it will, we want to hear from multiple groups about it. My understanding is that prison guards use this as a method of keeping order. What would they say about it? I assume that people who want to rehabilitate these offenders, which is one of our goals and I will come back to that, would be against it. Let us hear from these various groups. Let us hear the evidence. Let us also hear what the problem is. I will address that in terms of numbers.

Before we get to the actual legislation, once again the jury decides unanimously whether this is even possible, in terms of whether somebody is allowed to go to the National Parole Board earlier. I will provide the jury questions and members can decide whether they are very soft.

On of them is, “Do you unanimously agree that the applicant's number of years of imprisonment, without eligibility for parole, ought to be reduced, having regard to the character of the applicant, his conduct while serving his sentence, the nature of the murder for which he was convicted and the victim impact statements, yes or no?”

If it is not unanimously yes, it is over. If it is unanimously yes by a jury composed of Canadian citizens, then it can go to the National Parole Board, but there is a second jury question, because in terms of the reduction of the sentence for when a person can apply for parole, a jury votes a second time. Essentially the jury has to agree by two-thirds what the reduced period of time will be, not for when the person gets out, but for when the person can apply for parole.

The second question is, “Are no less than two-thirds of you satisfied that the applicant should be eligible for parole immediately, having regard to the character of the applicant, his conduct while serving his sentence, the nature of the murder for which he was convicted and the victim impact statements, yes or no?”

Then, the third question is, “Having decided that the applicant's number of years of imprisonment without eligibility for parole ought to be reduced from 25 years, what lesser number of years do you, at least two-thirds of you, order substituted?”

We are getting a unanimous decision by a jury as to whether it could be reduced at all, and then two-thirds of the jury have to decide what the reduction is for when the person can simply apply for parole. If the jury can jump through all of those hurdles, it then still goes to the National Parole Board for the board to decide whether the person gets parole at all, and if so on what conditions.

Once again, with that current system which is very strict, the question is, with one week to go before Parliament breaks for the summer, why are we dealing with this legislation rather than economic legislation, isotopes legislation or employment insurance legislation? What is so urgent?

In terms of the statute that the government is proposing, the first section proposes to abolish entirely these provisions, not retroactively, prospectively, to abolish them entirely. There will be repercussions for that, whether it is rehabilitation, prison guards or whatever it may be.

We have an obligation to listen to these people, to get their opinions before simply deciding if something should pass the House. That is what the committee process is for. Once again I do support sending the bill to committee.

In terms of a change of legal standard for the persons who are currently incarcerated, they wish to change it from “reasonable prospect” to “substantial likelihood”. It is phraseology. At the end of the day, the judge can decide that there is no appreciable difference, it means the same thing and the case law will build up in terms of what that means. Essentially, I do not think that is much of a change. I personally have no difficulty with that change, but I do not think it is going to do anything. Once again, I do not know why we are spending time in Parliament now, during an economic crisis, dealing with this issue.

In terms of comments, the John Howard Society currently does not support the repeal of the faint hope clause. The society said, “Our position is that we're not sure that this is something that does need fixing or repealing”.

Let us hear from the government why it is doing this. What is the evidence?

In fact, the society is concerned that this could lead to increased violence in prisons because there is no incentive for prisoners to be on their best behaviour because there is no possibility that they might, even in theory although remote, be able to apply earlier for parole.

In 2008 there were 109 offenders who were successful in such an application. Of those, only a handful were sent back to jail for breaching parole conditions, not for the commission of any serious crimes. The question is, since this is a recent 2008 statistic, what is the urgency as to why we are dealing with this in the House of Commons now rather than dealing with economic issues or isotope issues?

There is also a recent quote from the Minister of Justice. His rationale for why we are dealing with this now is, “We cannot bring back those who have been so callously murdered” . The justice minister said, “We cannot repair the hearts of those who have lost loved ones. But what we can do is ensure that those who commit the most serious crime, taking the life of another, pay the price and thereby validate the life lost”.

I do not disagree with the quote, but if the rationale as to why we are here rather than dealing with economic issues is vengeance, I do not think that is a substantial reason for not dealing with isotopes, EI and economic issues with one week left in this sitting of Parliament.

Prison guards in particular would be a group that we need to hear from. I am personally concerned about what happens in prisons with incarcerated individuals. I have a couple of examples.

We talk about rehabilitation. A former inmate who is out and I understand is leading a productive life, said that before being released he has spent his entire adult life in jail. He said that the possibility of early release was the only thing that provided hope and the motivation to change. He said that he thought for the longest time that he would never get out of jail, so he created his own freedom by getting involved in drugs. He said that realizing that he had an opportunity to get out early, gave him a different attitude. He gave up drugs, pursued his education, re-established contact with his mother and two younger brothers and began exploring his native roots. He said he looked at what he could do to better himself. He got out and became a productive citizen.

He did all that, in terms of rehabilitation, because of the theoretical, although difficult, possibility not that his sentence could be reduced, but that he could apply earlier for parole to the National Parole Board.

I went through the current statistics. In 2008, there were 109 inmates released with no serious recommission of offences. Once again, why are we considering this bill, with the current economic crisis and a week left to go in Parliament?

There are other important statistics. If the government were serious about the criminal justice system, in terms of an overall package, it would be taking into account other goals, not just retribution, but things such as rehabilitation and deterrence. We should have a very sophisticated analysis from the Conservatives, including from the Minister of Justice, as to why they are not doing this rather than this blunt instrument approach.

In terms of the criminal justice system, we have heard from many experts in the last couple of weeks that it is broken down. The prisons are overcrowded and it costs over $100,000 a year for each inmate. There are serious addiction issues. About half of all convicts committed their offence while intoxicated by either drugs or alcohol. Four to five people going into prisons have an addiction issue. Yet, there is a clear admission, as we heard in committee this week, that they cannot stop the drug trafficking in prisons. Why? Where is the legislation fixing that?

There are mental health issues. Thirty-nine per cent of Ontario inmates have mental health issues. There is an admission there is not the capacity at present to give them treatment. Where is the legislation on that?

The reason this is very important is that over 90% of all convicted persons in our jails get out. Our focus should be our responsibility to the Canadian public to ensure that when inmates are released, they have received the treatment that has been required for them. Where is the legislation on that?

Earlier this week I had the honour of speaking in this House on the legislation regarding the sex offender registry. I recommended many additional changes to make that legislation stronger because I thought it was too weak.

What I do question is, with a week to go in this sitting of Parliament, why we are dealing with this legislation when nothing has been shown by anyone as to why it is urgent, especially with the current economic and isotope crises.

We have to consider this entire issue from a reasonable perspective. There will be committee hearings if the bill passes, and I believe it will. However, we also have to look at the broader perspective, in terms of a criminal justice analysis. It is not sufficient for a western democracy such as Canada to simply have the justice minister use retribution as the rationale for changing a law that has been in force since 1975.

We need to look at the statistics and approach the problem not with rhetoric or any other form of motivation, but in a reasonable and rational manner.

I have no difficulty with this bill going to committee, but I expect to see good evidence, hear witnesses and have considered reflection as to what this legislation should truly do, rather than simply a rationale of being tougher.

[Protecting Victims From Sex Offenders Act, June 8th, 2009]

Mr. Speaker, I am not aware of any international registry, but I would assume that Interpol or the RCMP has co-operation with other law enforcement agencies in other countries. What I do know from the legislation, and it is a very good point, is there is a glaring omission in it because nowhere does it speak of that. In fact, there is a discretion given to the minister saying that there has to be the equivalency of what would be included under our legislation.

There is no specific, hard information or guarantees of what would be included. Whether it is in the legislation or through regulations, the Conservatives are going to have to get a lot more detailed and they are going to have to think very seriously about how they are going to get this information. Perhaps there will be an information requirement for people returning to Canada in terms of advising whether they have been convicted of these offences. It is a good point and something the committee will have to study if the legislation gets through, which I assume it will.

[Protecting Victims From Sex Offenders Act, June 8th, 2009]

Mr. Speaker, the hon. parliamentary secretary and I serve on committee together and when it comes to this particular issue, we have much in common. I firmly believe that amendments were needed in terms of this legislation. The problem is the method used and the exact substance of what has been put before Parliament.

I want to start with some history. This is the second attempt by the Conservatives to get this right. They attempted to fix the legislation by way of Bill S-3 which received royal assent on March 29, 2007 and was proclaimed on September 12, 2008. They have tried this before and they did not get it right or the legislation would not be back before Parliament in such a short period of time.

One would think that because they had to come before Parliament in such a short period of time, they would take all reasonable steps to ensure that the amendments would be proper and helpful. That would include a study by the relevant parliamentary committee, which is what took place. We studied this legislation for a number days over the last couple of months. We have a draft report and were in the process of reviewing it so that we could table it, probably within a couple of weeks, for the benefit of the minister before the providing of any legislation.

People can say whatever they want and call it disrespectful, contemptuous or use whatever phraseology, but the short of it is it is just not smart. The Conservatives have put forward legislation without the benefit of a study, the draft report of which was almost complete, without the benefit of expert testimony and all the information disclosure that came forward in that process. This just is not smart. They have done it for political points. I would like to go through what they have suggested. I would like to go through what is good about the legislation, because there are some good points, what is weak about it, and what I think needs to be improved.

The committee determined that the Ontario system is much better. There is an Ontario statute passed in 2000 which is called “Christopher's Law” and we know the history of that. In Ontario the registry is accessed over 400 times a day, where the federal regime was accessed 150 times per year. That comparison shows there is a huge difference. The federal system has truly failed in its use because of the ineffectual amendments that were put through by the Conservatives by way of Bill S-3 in 2008. And here we are again, which is fine. The legislation needs to be fixed and I support that, but let us do it in a smart manner, which is not what is occurring here.

We identified a number of problems which remained after the amendments the Conservatives passed in 2008. There was an issue in terms of mandatory inclusion. There was not an automatic inclusion in the registry of the various offenders after they were convicted. The Crown had to apply for this to take place. One of the problems with that is that a lot of Crowns, as part of a plea bargain, would negotiate to not include the name of an individual in the registry, or the Crowns would simply forget to make the request, or judges would not grant the request to include the offender in the registry. These are all problematic. I very strongly support the mandatory inclusion of these various offenders in the registry.

Let us look at what is really happening. The Conservatives like to say that the Conservative Party is the party of law and order, that the opposition parties and the Liberals do not support such an agenda.

Although the Conservatives have mandatory inclusion, they have put in all kinds of loopholes. One can seek to be exempted from the mandatory inclusion. One can appeal the mandatory inclusion. One can seek to be removed from the mandatory inclusion after a period of time. The mandatory inclusion expires automatically after various periods of time. All kinds of loopholes and exceptions are enumerated in this proposed legislation. In essence, they water down the mandatory inclusion.

That was probably the second most serious problem. Although the Conservatives will go out and eventually knock on doors and say they put mandatory inclusion into the legislation, they will not be able to legitimately say that because they put various exceptions into the legislation as well. Frankly, I do not understand why they did that. I think it is wrong.

I want to digress for a moment and talk about why this legislation needs to be a strong as possible while protecting the charter rights of people.

I did not know these statistics before the committee held its hearings, but I found them shocking and I think Canadians need to know them in order to know why we need to support a very strong system. This relates to the abduction of children. First, of all children abducted, 44% are dead within an hour of a kidnapping. Second, 74% of all children are dead within three hours of a kidnapping. Third, 91% of all children are dead within 24 hours of their being kidnapped. Those are horrible statistics.

We have a duty as parliamentarians, regardless of the party we belong to, to do everything possible to prevent those deaths. To me, that means there needs to be an effective system in place, whatever it may be, to ensure that when anybody is abducted, and in this example it is children, the police have whatever is necessary to find those children. This legislation, as proposed, does not do that.

What the Conservatives have done in terms of this legislation is address one of the glaring errors, and I think it was the number one error. The registry could only be used for the investigation of crimes that had been committed. It is a worthy goal and is absolutely necessary, but it is not good enough. The federal registry could not be used to help in crime prevention, which is what the Ontario system allows the police to do.

In terms of prevention, if somebody is kidnapped or there are any suspicious circumstances, in Ontario the registry can be used to investigate and attempt to prevent crimes. If there are stalkers or suspicious people around schools, if somebody has been abducted, the system can be used. That does not apply in the federal model. This particular change is very worthy, and we should support that 100%.

Other problems were identified. The first one was the mandatory inclusion. The second was prevention as opposed to just investigation. There are others. The automatic expiry of the orders was identified as a problem. If somebody has been convicted of a serious offence, I do not know why there would be an automatic expiry. These particular amendments continue that, and in fact provide additional ways in which someone could get out of the system. I think that is incorrect.

There are other problems. Unbelievably, the offenders are not required to provide information such as a car licence plate number. If somebody is abducted, the police do not have the ability under the federal model to ascertain the licence plate number of the car the offender is driving. This is unbelievable, but that problem was left in the system when the Conservatives put through the amendments in 2008. It has not been fixed. That is a serious error. There is nothing in this proposed legislation that changes that.

I find that shocking and that is one reason why the government should have waited for the report from the committee. That should have been in there. It needs to be changed and I believe my colleagues on the committee, regardless of the party they are from, would support that.

Another problem identified was foreign convictions and Canadians coming back to Canada. The government has sought to fix it, but not in a strong enough manner. I will go through that in a moment when I look at the various proposed changes in the legislation.

To summarize so far, the legislation is needed in a very strong manner. It needs to be amended to fix the problems left by the Conservatives in 2008. Those problems were identified in committee. The Conservative minister would have had the opportunity to read the report if he had only waited a couple of weeks. I find it shocking that Parliament and the committee, in particular, was disrespected.

Taxpayers need to know this. The committee spent a lot of time, called witnesses, paid for witnesses, asked them questions and none of that work was considered by the minister before the bill was introduced. Canadians have to understand that is wrong and it shows a tendency to dictate down and not respect the work of Parliament, which is dangerous.

In terms of this legislation, I have already indicated that prevention was a glaring omission, which is a very worthy change.

In terms of foreign criminals, there is a problem in that although they will be required to register, it specifically says that this only applies to persons who come to Canada after the legislation is passed. If serious sex offenders are already in Canada or they come here after the legislation passed, either way they are a risk to society and our obligation is to protect Canadians. Those people should be required to register and it truly has nothing to do with when they arrive in Canada.

In terms of automatic registration, when people are reviewing this statute and deciding whether it should be supported, they need to look at all the exceptions, and there are a number of them, which are all shocking. For example, in clause 9 there is termination order. There is an exemption order under clause 12. There are appeal provisions. There are many different loopholes. There is a litany of what offenders can do to get out of the system, which is not what the committee discovered we needed to do.

The committee found one of the problems was the automatic expiry of the registrations. Nothing has changed. If we look at paragraph 490.02904(3), we will see that all these automatic expiries are there. There could be exemption orders under the paragraph 490.02905(2). In essence, there is exception and loophole upon exception and loophole for these offenders to try to get out of the registration system. This is not what the committee would support in its report, which is almost done.

There is form 52, “Order to Comply with Sex Offender Information Registration Act”. Even in that form it says under section 7, “You have the right to apply to a court to terminate this order, and the right to appeal any decision of that court”. It advises people, as soon as they are told to register, that they can try to get out of it immediately. There are also mandatory provisions for the court.

Under 490.02905(2) the court “shall” make an exemption order. It is not even discretionary. It requires a court to take somebody out of the system based on those various criteria.

The Conservatives say that they have fixed this problem and now there is automatic inclusion, but that is just not true.

The first thing I did when I read Bill C-34 was look to see whether there were any licence plate requirements in it or that type of detailed information. I read it twice because I thought I could not have missed it, that it was sure to be in there somewhere. This was one of the most glaring errors identified by the committee.

This is such a serious error on the part of the minister that it has to be spoken of and we have to fix it. We cannot let this second round of amendments go through without changing this. There can be no exception to that. This must be changed. One of the key findings of why the Ontario system, Christopher's law, worked so well was because it had that ability.

Another large problem is funding. Perhaps I missed it, but I have not heard the minister say anything about the funding of this system. We can change whatever we want by way of legislation, but if we do not have the money to do it, what is the point?

The Ontario system funds its registry. It provides $4 million a year to ensure it is effective, which is why it gets so many daily hits. The federal system, which is operated by the RCMP, gets $400,000 to $600,000 per year for all of Canada. Think about that discrepancy: $4 million in Ontario, but $400,000 to $600,000 for the entire system. That needs to be changed and we need some commitment from the minister on how this will be adequately funded to ensure it works.

One of the other problems is faulty technology. The Ontario system has software that is highly developed. The information can be put in, such as the modus operandi of the offender, so the police can use the system very effectively and quickly for the best possible law enforcement mechanisms. There is nothing in this legislation about upgrading to better software or doing anything to fix the problem, which is one of the major concerns of the federal system.

In terms of warrants, there was evidence at the committee of what happened in Ontario if sex offenders failed to comply. If they do not register, if they do not advise of a change of address or licence plate, if they go on vacation or move and they do not provide the information, Ontario does something about it. I would like to see changes to the legislation to specifically authorize police officers to issue warrants if there is any breach of the information requirements, so we keep track of these offenders for the benefit and the protection of our citizens and for the investigation part of it as well.

There are two other problems.

First, there is no method under the current federal system of registration for people who are incarcerated or if they are deceased. In essence, this hurts the efforts of police officers because they simply do not know if somebody should be still questioned or if there is still somebody who could possibly be a suspect. This needs to be changed as well.

Finally, I have spoken a lot about what needs to be done to protect Canadians, but I also want to speak, on a final point, about what we need to do to protect the persons who have been convicted.

Hopefully most of these people will receive the proper rehabilitation. They will come back into society and hopefully lead good lives and do not repeat their mistakes. That is the goal of our criminal justice system. For those people, we have to offer protections to them as well. Section 17 of the current legislation provides penalties for the unauthorized use of this information. We need to strengthen those so anybody who uses this information for any improper purpose and not for the protection of Canadians is punished severely. That is my attempt to protect these people as well.

[Truth in Sentencing Act, June 8th, 2009]

Mr. Speaker, in terms of my friend's comments, obviously the Liberal Party agrees that it is very important that we look at the root causes of crime, not just incarcerating people and making things more difficult. Frankly, once somebody comes out of prison, it is important that they are rehabilitated, that there are a number of programs put in place in prison.

One of the problems right now in terms of capacity is people who suffer from mental health issues who are in prison, and there is a staggering statistic in Ontario alone of 37% to 39%, and people in the general populace who have addiction issues. These people need treatment when they are in prison so that when they come out they can be reintegrated into society. What is happening now is, because there is not enough capacity, we are getting situations where people are being released, not early with conditions so that they will have treatment.

I wonder what my friend thinks about these continuing problems and what really needs to be done and whether she supports this aspect.

[Truth in Sentencing Act, June 8th, 2009]

Mr. Speaker, I wonder if the member would comment on two different points. First, as we all know, there are different rationales for the criminal justice system in terms of punishment, deterrence, prevention, the sorts of different reasons we send somebody to prison or punish them. Is the member aware of any studies the government has to show that the bill would actually do something positive by way of deterrence or prevention as opposed to simply focusing on punishment, and what are her views in terms of how this will impact in those two categories?

As well, are there any studies or information she is aware of in terms of the actual capacity of the system to handle these changes, whether we can afford it, whether enough money is being put in, whether this will require the building of new jails, and whether any of this has been thought about in adequate detail in consideration?

[Tobacco Act, June 3rd, 2009]

Madam Speaker, I would like to compliment my friend on being an advocate on behalf of his constituents and Canadians on issues that matter, such as this one, and of course on employment insurance reforms which are desperately needed in Canada right now.

In terms of this particular topic, my friend mentioned in his speech that historically, tobacco advocates have always fought back, and they are doing it again with respect to this legislation. Many arguments have been used. One of them is that if this legislation passes, there will be an increase in smuggling and related contraband.

I would like the member's views on that topic and the advocates, and whether this bill should be passed in that light.

[Customs Act, May 28th, 2009]

Madam Speaker, there have been delays going back and forth, and in particular between Canada and the United States. Once again, we have approximately $1.6 billion of trade per day. Eighty per cent of our trade is with the U.S. It is a very serious problem.

Systems are in place that seek to move goods and people back and forth faster. There is the NEXUS system and the FAST system. The FAST system deals specifically with the movement of commercial goods back and forth across the border.

The problem is one of political philosophy. We have to understand that right now the Americans, if anything, are becoming more restrictive not less restrictive. We need to examine all potential pieces of legislation to make sure we have fair and reasonable requirements, but that also provide some form of reasonable standards that the Americans will accept, within the bounds of what we believe to be right of course, to make sure our trade back and forth continues to flow on an adequate basis.

[Customs Act, May 28th, 2009]

Madam Speaker, I think that is an excellent point. Obviously we do oppose any such profiling, very strenuously. There are many examples where we have been advised that this has occurred. We have had Canadians coming back across the border in buses, from events, where they have been stopped and held up for hours. This is a serious problem.

What I might suggest for this legislation, and what I think should happen at a minimum--I mean if the legislation is amended, that is wonderful, but if it isn't, at a minimum to stop this practice there should be some form of specific, approved training standards in the regulations so the people who are actually applying these rules would be told in advance what they are not allowed to do. I think it is an excellent point.

[Customs Act, May 28th, 2009]

Madam Speaker, I do not think it would do much. It would provide the additional power and abilities to enforce in these customs controlled designated areas. However, this is not a statute that deals specifically with the border. There are other methods to do that, and I fully agree with my colleague that we do need to be focusing on this.

There are various problems that still remain, which the Conservative government has not dealt with. One example is the arming of border guards. I understand there are no studies to actually show this is necessary, nothing to show that it is cost-efficient. In fact the studies I did see, or at least that were referred to, indicate the RCMP should be doing this rather than arming border guards, some of whom will not be able to do it. In those cases we would have to pension them off or have buyout packages for them. We do not know what the costs would be. This could be some large monstrosity.

In terms of this particular statute, this does not really focus on it. However, I think the Conservatives should be focusing on the other problems that do exist and changing their policies in terms of some of the problems such as arming border guards.

[Customs Act, May 28th, 2009]

Madam Speaker, in terms of this bill, as a general concept, I support it.

We did review this before the public safety committee, of which I am a member. Generally speaking, there were very few questions but there are some problems, two in particular I wish to highlight during the latter part of my speech.

Initially, I simply wish to comment upon what is good about this bill. First, it must be remembered that this particular statute, the Customs Act, its simple purpose is to administer and enforce the collection of duties and taxes. This is not actually a taxing statute. This is also not comprehensive legislation in terms of border security and the arming of guards. We have other statutes for that.

What must remembered any time we are passing amendments to one of these statutes in this area is that we live in a different time. When this was initially passed many years ago, we did not have the same number of concerns with the border and we did not have 9/11. Various things have changed. At this point in time, we have to find a reasonable balance between safety and the enforcement of these various charges.

No act is perfect, but generally speaking I think this is a relatively good act, and I would be surprised if all parties did not support this in the House. This already passed the Senate on April 23, 2009. The Senate has done a good job in terms of considering this act.

There are two main changes to the Customs Act in terms of what this bill does. First, is the expansion of activity within a customs controlled area. My esteemed colleague already commented on that. Essentially, we are creating a customs controlled area that would be under the supervision of these officials without having restrictions upon their ability to actually enforce the legislation and to make sure that things are not actually happening in an illegal manner.

For example, if there is a flight that has come into Canada, there may be a parcel that was international in origin. Smuggling does take place. We have gun problems, narcotic problems and things do happen. If the package is taken from an international cargo area and somebody trying to do something wrong tries to bring it into the domestic area, it might become one of those packages that simply does not get searched.

One of the things this act is trying to accomplish is to allow officers to search people in these customs controlled areas, even if they are not passengers, and if there are reasonable and probable grounds. For example, somebody who works there obviously cannot be checked in and out every time, that is just not practical. There is too much going on. I think the stats at Pearson in Toronto, as one example, indicate that a plane is either touching down or lifting off every minute. In those circumstances, the laws have to be practical and efficient as well.

Going back to my example, in the situation where a parcel is now in the domestic area, which ordinarily would not be searched, it would now be in one of these customs controlled areas. Whatever the parcels may be, or is going back and forth, or people are going in and out of these areas, there is now the ability to search these people and search these parcels. Essentially, it is an expansion of what the legislation previously was. I think that is a good thing to do in these times with these various problems that we are having.

The second main purpose of this amendment is to advance passenger information in terms of providing information to the Canadian authorities before people come into Canada. That makes sense. There is nothing wrong with letting us know in advance who is coming and what information there may be about those people. We will have a better opportunity to guard against what should not be occurring. I think that is another supportable feature of this legislation.

Another issue, in terms of clause 2, is that the minister will now have the power to directly authorize access to customs controlled areas. Before this, it could only be done by regulation. That is not very practical. If a minister now wants to authorize, for example, a member of Parliament to come and examine the site, he or she could do that. We do not have to wait for a regulation. I think that is a very practical measure which makes sense.

There was also an exemption previously in terms of persons boarding a flight to a destination outside of Canada and leaving a customs controlled area. They did not have to present or identify themselves to an officer. They did not have to report any goods that were obtained in the area and they did not have to answer any questions from an officer.

To be safe, in this day and age I believe it is reasonable to include a requirement that officers can in fact question people, examine them, ask for identification and see what goods they have. In essence that is part of an overall deterrence package. Once again, with so much traffic coming in and out of Canada, if people know these powers are there and they are now subject to inspection, perhaps that in itself would modify a good portion of conduct that should not be taking place.

It is important we recognize that something in the range of $1.6 billion of daily trade goes back and forth between Canada and the United States. These amendments obviously do not apply just to the United States, but since 80% of Canada's trade is with the United States, it is important that we have these various types of reasonable requirements. We especially have an obligation to all our trading partners and all our friends around the world to make sure we are doing what is necessary to ensure that laws here are being enforced.

Other improvements, specifically clauses 10 and 11, deal with inspections on the reasonable and probable grounds that I was mentioning. These clauses are very substantial, good changes that will allow us to fight smuggling specifically. I very strongly support those.

In terms of support from stakeholder groups, we have the GTAA and the Canadian Airports Council. A number of persons have supported this. I am not speaking for all parties formally, but I believe this will be supported by all parties when it comes to a vote.

Now, there are problems. There are two problems in particular that I do want to address. Once again, bills are not perfect, and perhaps they can be changed, but I do want to identify the problems. The first one has already been pointed out by my colleague, which specifically is proposed subsection 164.1(1), and I am going to read it. It is with respect to regulations, and it indicates:

A regulation made under this Act may incorporate by reference any material regardless of its source and either as it exists on a particular date or as amended from time to time.

In terms of law, one of the first principles is that there is no certainty to this. When we consider, once again, “on a particular date or as amended from time to time”, I would strongly prefer that this provision be tightened up so it specifically notes how regulations would be made and that there is not this incorporation by reference, especially with the phrase “as amended from time to time”. That does not provide certainty under the law, and I would like to see that changed.

I should mention that I do have the honour of being the joint chair of the scrutiny of regulations committee and this is what we deal with all the time. When these various regulations come to us and there is a problem, we seek to change or amend them. If something cannot be done, there is the power of disallowance, which is very rare. But it is better to try to avoid these problems now rather than having to deal with them in the future, so I would like to see that changed if possible.

The second potential problem deals with solicitor-client privilege. Specifically, it is not clear to me from the wording in this legislation that it is protected. Solicitor-client privilege is one of those legal rights that is accepted essentially in all common law countries, and it is something that needs to be enumerated specifically here. An example would be this. We are providing these powers in customs controlled areas to inspect essentially anybody at any time. The bill refers to reasonable or probable grounds. There are various passengers coming in and out to these various customs controlled areas.

I would like to see something that specifically says if it is a lawyer with solicitor-client documentation that it cannot in any way be inspected, period. I myself have had this situation, not in a negative manner, bringing legal documents back and forth for cases I had in the United States. It never has been a problem. However, I want to make sure that it never becomes a problem for anybody. I think it would be better if this was enumerated so we know that right would not be abrogated.

Overall, I believe that the statute is worthy of becoming law. There will always be problems. It would be my preference to see these problems that I noted solved. However, that being the case, I think that overall this is good work by the Senate, and I think we should support it.