Daniel Petit

[Business of Supply, December 9th, 2010]

Mr. Speaker, that is a very interesting question. The charter is so open-ended that it covers everyone. For example, a law-abiding citizen can turn to the courts if his provincial or federal government has taken away any of his rights.

There is also the other side. Anyone in jail or accused of any criminal offence also has the right to invoke the charter. For example, someone could say that he was searched without reason, that he was deprived of the right to a fair and reasonable trial, or that the court was not impartial. All these rules are in the charter, and according to these rules, everyone—myself, my colleagues, the people we represent—has the right to go before the courts. The most important aspect is the rule of law. A democracy that operates without law is not a democracy.

In Canada, democracy has been in place for a long time. At some point we codified our customs pertaining to laws and the rule of law. As society evolved, or as particular circumstances arose, other rights were added. The Constitution protects freedom of expression and our rights, but it is the rule of law that is most important.

[Business of Supply, December 9th, 2010]

Mr. Speaker, the questions asked by the hon. member from the Bloc Québécois raise some good points. I would like to point out to him that he has the right to ask his questions because he has the right to free speech. Members of the public make many different requests by virtue of this right. A balance must then be found between governance and the public's requests. We are elected officials and we choose whether or not to support certain requests made by the general public. This is the right to freedom of speech.

We are not taking away any rights; all the rights remain. The only thing that is different is that certain rights have been codified at some time and made law, while others have not. It is through parliamentary balance, here in the House, that all parliamentarians can choose whether to pass a bill or not, depending on a vote by a majority. In each case, we respect the public's right to freedom of speech. That is the right given to us by the Constitution.

[Business of Supply, December 9th, 2010]

Mr. Speaker, the fact that we can express ourselves is one of the freedoms we have under the charter. Freedom of expression ensures that no matter who we are, we have the right to express ourselves. Our opinion, whether it is for or against something or causes harm or not, is interpreted by the courts. However, I would point out that the hon. member, who works with us in the Standing Committee on Justice and Human Rights, has indeed shown through this motion that the charter is there simply to allow an expression of opinion and of freedom, and that is very important. Having the right to freely express oneself and express an opinion is what it means to live in a democratic country. That is what democracy is all about.

[Business of Supply, December 9th, 2010]

Mr. Speaker, I would like to begin by thanking the hon. member for Moncton—Riverview—Dieppe for having given the House of Commons the opportunity to address the crucial role that the Canadian Charter of Rights and Freedoms plays in terms of good governance in our beautiful country.

As we are all aware, the charter is part of Canada’s Constitution. The charter is the highest legal expression of a number of fundamental national values that have been crafted with pride throughout our history. The most fundamental of these values is the rule of law, in the name of which a good many sacrifices have been made.

Specifically, the charter guarantees the right to liberty and security of the person; freedom of conscience and religion; freedom of expression, including freedom of the press; freedom of association and assembly; the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein; the right, for persons who have been charged, to due process of law and to fair treatment; and the right to equality. Each of these guarantees is crucial in a democratic state founded on the rule of law and is inextricably linked to Canada’s social and political development.

These guarantees were far from being new legal concepts when the charter was adopted in 1982. In fact, they were the result of other great moments in the history of our Parliament and of our provincial legislative assemblies. In 1960, the Progressive Conservative government of Prime Minister Diefenbaker adopted the Canadian Bill of Rights, the federal government’s first-ever comprehensive Canadian human rights instrument. The bill contains many rights and freedoms guaranteed by the charter, including freedom of expression, of religion and of assembly, legal guarantees for persons accused of an offence, as well as equality rights. The 1960 bill also contains the right to the enjoyment of one's property and rights of a general nature to impartial hearings, which is very important. These rights go beyond the guarantees set out by the charter, so they are still relevant today.

Legislators had already passed a large number of equality rights, in addition to the bill, prior to the adoption of the charter. At the federal level, the Canadian Human Rights Act guaranteed Canadians would not be subject to discrimination in the area of employment or in the provision of goods and services, on the grounds of race, national or ethnic origin, colour, religion, age, gender or disability. Every territory and province enacted similar guarantees. Given their crucial importance for Canadian society and for the expression of key Canadian values, the courts determined that the Canadian Bill of Rights and human rights codes, such as the Canadian Human Rights Act, were quasi-constitutional instruments.

Furthermore, Canada played an active role in concluding international human rights conventions that support Canadian values and reflect the concerns regarding individual dignity, justice and democratic governance that underpin the charter. From the Universal Declaration of Human Rights adopted by the United Nations General Assembly in 1948 to the International Covenant on Civil and Political Rights, which Canada ratified in 1976, to the Convention on the Rights of Persons with Disabilities ratified by the Government of Canada in March 2010, Canada has always promoted and defended all charter rights and freedoms. Thus, it should come as no surprise that they made their way into the Constitution of Canada.

It is important to note, however, that the rights and freedoms guaranteed by the charter are not absolute. The first section of the charter guarantees the rights and freedoms set out in it, subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

This compromise is essential to the charter. It guarantees Parliament and the other legislatures in Canada vast sovereignty so that they can continue responsibly defending the collective interests of Canadians, even though they may infringe on individual rights. I will come back to this important point before the end of my presentation here today.

Generally speaking, the role of the Constitution, including the charter, is both to establish how the legislative and executive branches shall exercise their powers and to impose limits in order to ensure good governance of Canada in accordance with the rule of law. That is important. It means that when they are passing legislation, legislators and the various legislatures in this country must ensure that all provisions of the legislation respect the rights and freedoms guaranteed by the charter. It also means that when interpreting and enforcing legislation, the federal and provincial governments have an obligation to respect all rights and freedoms guaranteed by the charter.

When people feel they have been wronged by the government, or by the application of its laws, the charter includes methods for ensuring its own application in order to make certain that the various legislatures and governments always adhere to the rule of law. The best-known way of doing this is for Canadians to seek a remedy before the courts if they think government action or legislation has violated their rights and liberties. Most importantly, the Constitution Act, 1982, recognizes the ability of the courts to strike down laws or actions that do not comply with the charter.

Despite its deep roots in Canada’s political and social traditions, the charter has clearly brought about some major changes in the 28 years since it became law. It has prompted debates, discussions and controversies over its interpretation and effects and over the advantages and disadvantages of the changes it has wrought. These debates crop up around kitchen tables, in courts of law all over the country, in the universities, within government and in the legislatures. The discussions had already commenced while the charter was being drafted and continue to this day. These kinds of debates are healthy in a democratic society and I am delighted to be able to continue them in this most august of forums. A critical theme for discussion is the way in which the charter has clearly redefined and brought about a new balance in the relations between the legislative, executive and judicial branches of Canada’s democratic system.

Over its short history, therefore, the charter has made a major contribution to the ongoing discussion in Canada about the core values that shape us as a nation. The least controversial of these values is probably the commitment to the rule of law, as enshrined in the preamble to the charter.

The Minister of Justice plays a role in advancing the rule of law within the federal government: he or she is responsible under the Department of Justice Act for ensuring that “the administration of public affairs is in accordance with law”. The minister is the official legal counsel to the Government of Canada and the legal member of the Queen’s Privy Council of Canada. The minister is also the Attorney General of Canada, and in these two roles, the minister generally advises all departments and ministers on the legal obligations of the federal government, including the legal methods of administering public affairs in the public interest.

In addition to the responsibility for ensuring that public affairs are administered in accordance with law, including with the charter, the Attorney General of Canada is responsible for all legal actions brought by the Crown or brought against it. This includes defending the laws of Parliament and the actions of the Government of Canada against challenges brought before the courts under the charter. As we all know, the charter is often invoked in attempts to question the constitutionality of federal legislation and challenge the actions taken by the Government of Canada under such legislation.

As a general rule, the Attorney General of Canada mounts a vigorous defence. As I said earlier, the charter guarantees rights and freedoms that are subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. A vigorous defence of our laws in charter challenge cases makes at least two things possible.

First, it makes it possible to ensure that the meaning of the rights and freedoms guaranteed by the charter is not tainted nor is it extended beyond what Parliament intended, and that those rights and freedoms are consistent with the role assigned to them in Canada’s democratic system. Second, it make it possible to ensure that the maximum reach of those reasonable limits is preserved and clearly defined. In turn, that reach makes it possible to ensure, now and in future, that Parliament, which acts on behalf of Canadians and in full compliance with the values expressed in the charter, has the broadest possible latitude in the responsible exercise of its powers.

I am certain that the other members of the House will agree that a vigorous defence by the government is in no way disrespectful of the charter. The important aspect of the charter, which other nations have copied in drafting their own constitutions, is the balance it expressly establishes between the guarantee of rights and freedoms for everyone and the recognition of the supremacy of the public interest over those rights and freedoms in certain circumstances. When the government mounts a vigorous defence in charter challenge cases, it constantly champions the predominance of the public interest in appropriate and justifiable cases.

Even in cases where the government is not successful, it often gains useful information and experience from the process that enable it to pursue the same objectives on behalf of Canadians but use a modified strategy that still abides by the charter.

Before concluding, I would like to point out that the opposition motion introduces the notion that it is somehow inappropriate or even sacrilegious to express one’s opinion on the charter.

While it undeniably encompasses and reflects the fundamental values of Canadian democracy and society, the effect on our constituents and our democracy would be negative if we could not express our opinions.

The charter is—and I do say is—the supreme law of the land, and the Government of Canada is obviously committed to respecting the rule of law. That commitment is entirely to the credit of Parliament and, through Parliament, of the citizens of Canada.

[Criminal Code, December 8th, 2010]

Mr. Speaker, I understand the hon. member's question. I would like to point out to her that we introduced a whole series of bills. We have about 20 that are either before the House or the Senate.

I would also like to point out that, until just recently, there have been many bills, Bill S-10 for example, that will soon come before the House. I worked on this bill for almost a year. But what did the Senate do with it? It arrived in the Senate and they ripped it to shreds. We had to start from square one. Sometimes it is our own fault but, other times, both sides are to blame. What is important is that we present a united front in helping the people of Canada. We will also be helping offenders who will now be monitored and who may be forced to obtain treatment for a drug or alcohol addiction. This may help them become better members of our society.

[Criminal Code, December 8th, 2010]

Mr. Speaker, my colleague has asked an excellent question, but I have absolutely no answer. All we know is that many cases are related to drugs and alcohol. I cited some examples in my speech earlier. We do not have any specific information on cases after October 2006. That information might be available in Juristat, but I do not have it on hand. However, I can try to find out.

[Criminal Code, December 8th, 2010]

Mr. Speaker, yes, when we were studying the clauses regarding being under the influence, one clause was not implemented. This clause asked the following question: if someone is arrested by the police and provides a bodily sample, can they take that same sample and have it analyzed by another chemist? This clause was not implemented.

In this case, the mechanics of it are completely different. The primary goal of the bill is to allow society—probation officers, police officers or the courts—to ensure that an individual will not continue to consume alcohol. Otherwise, this individual will cost us a fortune. We must absolutely be able to protect this individual from himself through orders that allow for samples to be taken on different days, for example, every seven days, in order to have proper control over the offender and to ensure that he comes back in good shape. That is what we want.

[Criminal Code, December 8th, 2010]

Mr. Speaker, I would like to begin by thanking the member for her question. Like me, she is a member of the Standing Committee on Justice. This bill required a lot of thought. We must not forget that the Supreme Court of Canada expressed its opinion on the illegality and told the government to redo its homework.

Given that we did not want to fall into the same trap—creating a bill that would be challenged again—we had to start by ensuring that everything happened in consultation with the territorial and provincial attorneys general. Then we had to ensure that we were fixing not one problem, but three. We had to maintain public order, which is covered in section 810 of the Criminal Code. In each case, we had to ensure that both the individual and society would be protected. That can take time, but it is better to introduce something complete than to risk another challenge in a few years' time.

[Criminal Code, December 8th, 2010]

Mr. Speaker, I am pleased to begin the debate on Bill C-30, Response to the Supreme Court of Canada Decision in R. v. Shoker Act, an important bill that illustrates our government's desire to improve the safety of our communities.

This bill will help ensure that offenders respect prohibition orders on the consumption of alcohol or drugs, which will better protect our streets and communities from offences committed by people under the influence of drugs and alcohol.

Bill C-30 will once again make it possible to require offenders to provide samples of bodily substances in order to ensure that they are complying with prohibition orders on the consumption of alcohol or drugs. The courts lost that power in the fall of 2006 as a result of the R v. Shoker decision, in which the Supreme Court of Canada ruled that the Criminal Code does not grant the courts the authority to order that samples of bodily substances be taken in the context of prohibiting the consumption of alcohol or drugs.

This power is essential to solving one of the glaring problems facing our society: the harm caused by people who abuse drugs or alcohol.

Everyone in the House knows that in this country and around the world, drug and alcohol abuse often leads to all kinds of crime: property crimes, violent crimes and sex crimes. The sheer number of crimes committed by individuals under the influence of drugs or alcohol is staggering. The Correctional Service of Canada estimated that about 50% of the 250,000 convictions handed down every year are directly related to alcohol or drug abuse. The more serious and violent the offence, the more likely it is that the individual committed it after consuming alcohol or drugs. Nearly 80% of the offenders sentenced to two years or more stated that alcohol or drug consumption was the cause of the offence.

We also know that most offenders commit crimes to get the substances they abuse. Approximately 38% of federal offenders dealing with substance abuse problems committed the crime that led to their incarceration in order to support their addictions.

This problem has serious repercussions on society. The victims suffer the most, but their families and the offenders' families suffer, too. Businesses suffer major losses, and the justice system has to bear a heavy burden. They health care system is struggling under the weight of efforts to treat victims' injuries and offenders' addictions. Furthermore, these crimes add to the financial burden on police resources and taxpayers.

We will continue to charge, try and sentence individuals who have committed crimes because of their abusive consumption of alcohol and other substances because, if we do not address their addiction problems, they will continue to commit crimes once they are released.

In Canada, federal and provincial correctional services provide inmates with addiction treatment and counselling services. But this kind of support has to continue once the offender is released. The best tools we have to manage the risk posed by an offender with addictions who is released are conditions that require the offender to participate in a treatment program and to abstain from drugs and alcohol. Such conditions can help eliminate the problem that led to the crime.

For example, every time an offender is sentenced to less than two years in prison, the court can also impose a period of probation that can last up to three years. Every probation order also includes a requirement to keep the peace and be of good behaviour. The court can also impose any other conditions necessary to ensure the offender's rehabilitation and public safety.

As I mentioned earlier, one of the most effective and most commonly used conditions is the prohibition of drugs and alcohol. According to the Canadian Centre for Justice Statistics, approximately half of all probation orders include such a condition.

Until 2006, judges imposed this condition along with a condition requiring the offender to provide a sample of a bodily substance for analysis on the demand of peace officers and probation officers. This condition made it possible to monitor the offender's conduct and his sobriety after his release. This condition was a deterrent since the offender knew that if he breached his drug and alcohol condition, he might be caught, tried and sentenced to two years for breach of parole.

What is more, it is essential to get a sample of a bodily substance to present as evidence at a trial for breach of parole. This is so important that crown prosecutors who do not have a sample that tested positive are generally reluctant to initiate these types of proceedings. The ability to try an offender for breach of condition prohibiting the use of alcohol or other substances is important, because failure at this point means that the substance abuse would continue, leading to new crimes being committed and more people being victimized.

As I was saying, it used to be common for a sentencing judge to impose a condition requiring the offender to provide a sample of a bodily substance. This practice ended following the Supreme Court ruling in Shoker.

In 2004, the accused was convicted in British Columbia of breaking and entering a dwelling house with intent to commit sexual assault. Mr. Shoker, who had a history of abusing methamphetamines, heroin and cocaine, was sentenced to 20 months in prison followed by 3 years of probation. The probation order stated that he must abstain from consuming drugs or alcohol, participate in a treatment program and, at the request of a peace officer or probation officer, allow the seizure of bodily samples.

The accused appealed, arguing that the condition that he provide bodily samples was unconstitutional because it violated his right to be secure against unreasonable search or seizure, as guaranteed under section 8 of the charter. The case went to the Supreme Court, which concluded in October 2006 that the condition requiring the offender to allow the seizure of bodily samples was illegal.

I should note that the court did not declare that requiring an offender to allow the seizure of bodily samples was fundamentally unconstitutional under section 8 of the charter. It clearly established that Parliament could, if it so decided, enact legislation to authorize the seizure of bodily samples. According to the court, the provisions of the Criminal Code simply do not authorize the sentencing judge to impose such a condition in a probation order. Furthermore, the court rejected the Crown's argument that the probation provisions implicitly authorize the imposition of conditions regarding the seizure of bodily samples.

As a result, the courts have since been unable to impose a condition in a probation order requiring offenders to provide bodily samples.

The Shoker case also had repercussions on Criminal Code provisions related to conditional sentences and peace bonds because they involve conditions similar to those imposed under probation orders.

Bill C-30 proposes to amend Criminal Code provisions related to probation, conditional sentencing and peace bonds by clearly establishing that if a court chooses to impose a condition prohibiting alcohol or drug consumption, it can also impose a condition requiring the offender to provide a sample of a bodily substance to ensure that this person has abstained from alcohol or drugs.

Under the proposed amendments to these three regimes, the court could impose two specific conditions requiring an offender to provide a sample of a bodily substance. First, an offender can be required to provide a sample of a bodily substance at the request of a peace officer or a probation officer, if that person has reasonable grounds to believe that the offender has breached an order requiring them to abstain from using drugs and alcohol.

In addition, the bill provides that the court can also impose a condition requiring the individual to provide a sample of a bodily substance at regular intervals. This supplementary condition could be appropriate in cases where there is an increased chance that the offender will have difficulty abstaining from drug or alcohol use or when increased monitoring is needed.

At least seven days must elapse between each sample, but the intervals may vary. Because the probation officer has a direct role in supervising the offender, it is up to the officer to determine the length of the intervals.

This regime contains another important aspect. It offers the possibility of taking samples of more then one type of bodily substance. This concern was raised when the justice department consulted provincial and territorial justice bureaucrats, specialists, police and probation officers in the wake of the Shoker case. All those consulted indicated that the legislation should confer the authority to take various kinds of samples. Thus, any substance included in the growing list of illegal drugs could be identified. It could also be determined when the drugs were taken and what methods offenders use to avoid detection.

Following the consultations, we concluded that, to be effective, a sampling system must be flexible enough not only to meet current requirements, but also to add new requirements over time. To that end, the bill gives the government the power to make regulations governing the types of samples and the authorized methods for taking samples, and to make changes as requirements evolve.

The bill makes it possible for the federal government to confer, by regulation, the authority to take and analyze samples of urine, breath and blood, for example. It may also designate certain types of sampling when the provinces and territories have confirmed their ability in that regard.

I would also like to point out that the authority to make regulations under Bill C-30 has another important role. In fact, it makes it possible to ensure that provincial and territorial representatives responsible for administering the taking of samples do so in accordance with national standards established by the federal government. Although the provinces and territories may determine their own rules for the operational aspects of the system—designating the persons that may take samples, where and when sampling can occur, as well as the manner for storing and destroying samples—the provincial rules are subject to the federal regulatory framework.

This serves two specific objectives. First, each administration can manage the system in its own territory. It can decide on the applicable operational characteristics, which may vary from one administration to the next.

Second, the administrative aspects of the sampling system will not affect the subject's privacy or the samples' integrity. It guarantees that the offenders concerned are treated fairly under this system.

The attorney general of the province will thus be able to designate the persons authorized to take blood samples; however, this discretionary power will be limited by the federal regulations. The regulations could give only qualified doctors the authority to take blood samples; however, the attorney general of the province could choose to further limit the types of qualified doctors authorized to take blood samples in the province. This type of approach could be used to determine not only who is authorized to take the samples but also the types of containers and the methods for storing, analyzing and destroying the samples.

This framework would provide enough flexibility to meet the operational requirements of all 13 provinces and territories while maintaining minimum national standards. In practical terms, this initiative should encourage each administration to collect samples from offenders more frequently, which will result in increased compliance with the prohibition conditions.

I am pleased that we were able to address this major operational issue for the provinces and territories without compromising the need for national privacy and equity standards.

During the consultations held with the provinces and territories following the publication of the Shoker decision, all administrations agreed that authority must be granted to take samples not only in the case of probation orders, but also in the case of conditional sentence orders and recognizances to keep the peace. As I already mentioned, Bill C-30 makes it possible to achieve this objective.

I would like to specify that all provinces and territories are in favour of the sampling regime set out in the bill.

Before closing, I would like to mention the measures taken by the Attorney General of Canada to guarantee the constitutionality of these changes. Given the numerous factors involved, we are convinced that the proposed changes would survive a charter challenge.

Consider the following points. First of all, the use of samples collected by police or probation officers would have to be strictly limited to verifying compliance with a court-ordered abstention condition. Second, the results of the analysis could be disclosed to the offender. Third, the probation officer would have to provide the offender with comprehensive written notice of any obligation to provide a sample at regular intervals, including information as to where and when the sample will be taken. Fourth, there must be a provision whereby a sample may be taken only when there are reasonable grounds to believe that the individual has breached the abstention condition. Fifth, anyone who takes part in the taking, handling, storing or destruction of samples would have to obey very specific rules. Sixth, the samples and the results of the analysis would have to be destroyed when the condition expires, unless the analysis is needed as evidence in legal proceedings resulting from a breach.

In closing, I am proud to say that I believe we have introduced a good bill that deserves the support of all members of this House. It is an effective, appropriate response to the Supreme Court of Canada's decision in R v. Shoker. It gives police and probation officers the tools they need to ensure that offenders with substance abuse problems take their rehabilitation seriously. It allows courts to impose conditions with the assurance that those conditions can be monitored and enforced. Lastly, this bill has the support of all 13 provinces and territories.

Thank you, Mr. Speaker, for the opportunity to speak to this important initiative.

[Justice, December 8th, 2010]

Mr. Speaker, I thank my hon. colleague for his question.

Unfortunately, the Liberal coalition is playing petty politics, but I have a test for the members of the coalition. Our bill on drug crimes is the same—yes, the same—as the one that this House passed last year, before the Liberal senators eviscerated it.

I wonder if the coalition is prepared to pass Bill S-10 at all stages when it comes before the House.