Derek Lee

[Criminal Code, November 9th, 2006]

Mr. Speaker, I want to try to correct the record, if I may. The member who just spoke referred to Bill C-9, a bill that just passed through this place. While it arguably may not be bang on relevant, it was mentioned by the member in his speech.

The member and the Minister of Justice have publicly stated that arson was removed from Bill C-9. Is the member aware that arson of a dwelling house still remains within Bill C-9? What those members are saying to Canadians, almost every day, is, I could be polite and say that it is wrong, but it is misleading to the point of being deceitful.

Is the member aware that arson of an inhabited dwelling house is a personal injury offence? It is quite unfair to Canadians for him and the justice minister to continue to repeat those remarks. It is misleading and most unfair.

[Criminal Code, November 9th, 2006]

Mr. Speaker, during these remarks and prior remarks there was a suggestion that this legislation attempted to deal with the worst of the worst.

I have looked at the schedule of offences listed in the bill. While they are all criminal offences, they might not be classed as the worst of the worst. There are some 56 separate offences listed, not just the rape scenario mentioned by one of the members opposite. I agree a rape situation is an extremely serious offence and three of them in a row leads one to an obvious conclusion. However, the offences listed can include ordinary assault, an abduction of a child from Canada, which could be a parent leaving with the child without authorization, and robbery. I am not saying they are not criminal offences, but the members opposite described these offences as the worst of the worst.

Would my colleague care to comment on the list, given that we are dealing with a “three strikes and you're out” presumptive scenario in the bill?

[Criminal Code, November 9th, 2006]

Mr. Speaker, I want to support you on that. There has not been a five second window since my colleague began his speech that the members of the government have not been yelling and interjecting. I simply ask for the courtesy to let the member deliver--

[Criminal Code, November 9th, 2006]

Mr. Speaker, I have to say that the government benches look pretty empty too.

I am waiting for the day when members of the Conservative Party and that government will be able to govern without having to mention the opposition parties. I wait for the day when the government will be able to stand on its own feet as a mature government and articulate public policy on its own merits, when it does not require reference to the Liberals this, the NDP that, and the Bloc the other. When is the government going to grow up and articulate good public policy from the floor in the House? That is what I am waiting for.

I note in regard to a lot of what the member was just referring to when describing the circumstances surrounding rape that those conditions also exist in the Criminal Code and allow the designation of a dangerous offender now.

[Judges Act, November 9th, 2006]

Mr. Speaker, that is a very good question because it goes to the core of why the Supreme Court originally recommended that there would be an independent commission, whose report would be presented and essentially adopted as is, thereby obviating any need for Parliament itself or the cabinet or anybody else to actually go and reinvent the wheel and figure out by how much judges salaries should be increased.

The independent commission, as established, is the mechanism that the judges hoped would avoid this kind of a back and forth argument. Originally, it is worth noting and as the member mentioned, when the mechanism was created for the judges, it was felt that members of the House of Commons and the Senate could simply piggyback on that same salary adjustment mechanism, but it turned out, as I referred to in my speech, that lawyer and judge inflation is different than street inflation.

Many members of the House just felt that we could not, in fairness, accept the relatively rich increases that were being generated in the lawyer-judge area. We preferred to peg our salaries here to combinations of either the consumer price index or the industrial aggregate. Those numbers, those percentage increases, are closer to what I referred to earlier, regarding the bus driver in Winnipeg and the fish plant worker in Nova Scotia, tracked by Statistics Canada.

Members got the right idea and the Supreme Court had the right idea. At this point in time, I think the government is trying to change that and the future will tend for itself.

[Judges Act, November 9th, 2006]

Mr. Speaker, I think my remarks will pretty much follow along the same context as our colleague who just spoke.

In my remarks today I want capture three separate perspectives on the bill, and not because I am looking in a rear view mirror. The way the government appears to want to handle this matter will likely cause new files to open in the future. The other place, next door to the House of Commons, will undoubtedly be interested in some of these perspectives as it reviews the bill.

As we all know, the Supreme Court of Canada a few years ago decided that the only solution to the ambiguities and imprecision in the matter of setting or adjusting the salaries for judges was the need for an independent commission which would study and recommend what those salary levels should be. The commission has functioned for the last five or ten years. As I recall, the second last report was implemented as the Supreme Court had recommended.

It was a Supreme Court decision, which is a bit more than a recommendation. It created the law in that case in an arguable vacuum, taking into account the contingencies that the court felt were relevant at the time.

The report we are dealing with now is from the independent commission, not from the justice committee. It was introduced a couple of years ago. The last government introduced a bill that would have implemented the recommendations of the commission. That bill fell from the order paper at dissolution of the last Parliament. The new government has now introduced a bill that would substantially reduce the amount recommended by the commission.

Part of the problem identified by the government, which it felt empowered to identify, was that in assessing the costs and what should be paid to judges and the courts, there was a difference between street inflation in Canada and what I would call lawyer-judge inflation. The Supreme Court and the commission recognizes that one of the considerations of setting judicial salaries is the need to attract some of the best legal minds into the judicial profession. In order to attract them, there has to be appropriate amounts paid in salaries. Therefore, the court has accepted that lawyer-judge type inflation is very relevant to the setting of those amounts.

The setting of those amounts do not have very much to do, whether one agrees with this or not, with what a bus driver might make in Winnipeg or what a fish plant worker might make in Nova Scotia. As a result, we have these two different worlds competing. When the independent commission makes its report, it looks at the judicial-lawyer type inflation and the salary amounts that should be paid to continue to attract good people into the profession. As I said, the previous government had followed through on this, but the new government has not.

I want to now turn my attention to the legal infrastructure in this place to deal with the salaries of judges.

Just so the record is clear, section 100 of the Constitution Act says that judges' salaries shall be fixed by the Parliament of Canada. Section 17 of the Constitution Act says there shall be a Parliament of Canada composed of the Queen, the House of Commons and the Senate. Parliament has three heads. I think most would agree the modern manifestation of the Queen would be the Privy Council, which, for all practical purposes, is the cabinet. The cabinet is represented in the House of Commons through the Prime Minister and the other ministers. In dealing with judicial matters it would be the Minister of Justice.

There is another section of the Constitution Act which is a bit of a sleeper but very important to us here. Notwithstanding that section 100 says that Parliament shall fix judges' salaries, section 54 of the Constitution Act says that the House of Commons may not pass a bill or motion that involves the expenditure of public money unless the government, the Queen--the Privy Council--has already given a royal recommendation for the expenditure of that amount.

As the House deals with these matters in the ordinary course, the House cannot increase any of the spending of public money without a royal recommendation. That is very important because what has happened in this case is that the consideration of the report of the independent commission is done by this House. While this House under those constitutional rules could reduce the amount recommended by the commission and put it into a bill for adoption, this House could never increase the amount.

The best laid plans of the Supreme Court of Canada in setting up this independent commission which then makes a recommendation to Parliament is handicapped by the fact that there is only one player in the mechanism that has the ability to fairly implement, and that is a government bringing in a bill with a royal recommendation.

I make the point that it looks to me as though section 54 requiring a royal recommendation hobbles, handicaps, is an impediment to the House fairly dealing with the commission report. The independence that the Supreme Court of Canada had hoped for when it went through the Prince Edward Island case and the Bodner case has been lost simply because section 54 requires the existence of a royal recommendation. We have one hand tied behind our backs as we deal with this.

Oddly enough the Minister of Justice, confirmed as recently as yesterday by his parliamentary secretary, told the justice committee as it reviewed this report that if the committee wants to increase the amount recommended, it should go ahead. That is essentially what was said. That came from the justice minister. I suggest to the House, in this circumstance knowing the law as he should, and I am looking for an adverb or an adjective, but that position could be described as falling in the spectrum somewhere between ignorance and deceit, with sincerity in the middle.

Surely the justice minister knows that the committee and the House could never recommend an increase or adopt an amount that was in excess of what the Privy Council put into the bill without a royal recommendation. Yet it appears that publicly the government is giving the impression that the government, the Privy Council, is open to Parliament fixing this amount to what Parliament and the House think is appropriate, when all along it knows full well that such an increase could not be implemented, recommended, moved, proposed in committee or in the House because there is no royal recommendation.

I would say today that if the government were sincere in saying it is possible to raise these amounts to what the independent commission had recommended, I challenge the government now, I challenge the minister now, I challenge the members of the Conservative caucus to say they will give a royal recommendation to implement what this House wants, what the committee would have adopted had the proposed amendments to increase the amount in the bill not been ruled out of order at the committee. The amendments to reinstate the commission's report were ruled out of order. If the government were really sincere in its suggestion that the House could increase the amounts, it must say that it is also prepared to provide a royal recommendation, which the government is apparently not prepared to do.

After the bill passes third reading it will move to the other place. There is another rule in the Constitution which says that the other place is not able to initiate a money bill or spending. The only place in the whole world where one could implement an increase in this bill is in this House, but we have one arm tied behind our back because of section 54 which says that we need a royal recommendation and that royal recommendation can only come from the government.

I regret that. I wanted the record to show that. It is most insincere for the attorney general to hold that out, that he and the government are willing to see an increase when they will not come forward and say that they will give a royal recommendation for the increase that might be there.

Now that I have that out of the way, I want to do two more things. The first is to talk about the independent commission mechanism that was set up by the courts. Looking back over that, it occurred within the last 10 years, it seems to me that while the court was sincere in wishing to create the independent mechanism and to have a vehicle that Parliament could make use of, I believe the courts overlooked some of these elements that I have described here today, the incapacity of the House to move anything upward or to make a move without a royal recommendation. At the end of the day, the one component of government that obstructs the court, i.e., the cabinet and the Privy Council, is the one component the court wanted to distance itself from when it set up the mechanism.

The court felt that there should be a degree of judicial independence and it should not be in a position to go cap in hand to the cabinet, to the Privy Council, and yet, after implementing this mechanism, we are still stuck with the problem that was there before. The cabinet, the Privy Council, still has that one piece of paper, the royal recommendation, that prevents Parliament from fulfilling its constitutional obligation.

There was a time at the committee when I was prepared to argue that the royal recommendation provision in section 54 was, I will not say it was unconstitutional, but because there was a conflict between section 100 and section 54, that section 100 empowering Parliament to fix the salaries of judges should prevail over section 54. It is an argument for another day, not here.

I do suggest in the event the court wishes to deal with the matter again, and the court may, given what has happened here with this bill, that an attempt be made to implement an improved dialogue between Parliament and the court just this one time. The courts do not have to come cap in hand here. They are an independent institution and have to be constitutionally.

If they are designing a judicial salary adjustment mechanism, and if Parliament is an integral part of that process, then the mechanism surely must be designed in collaboration with Parliament itself. Had that dialogue occurred 10 or so years ago, the problem we have today might have been avoided.

The last thing I want to do is to connect some dots, and my colleague who spoke just prior to me actually began to do that. It has to do with the position of the current Conservative government that has in one sequence of actions managed to clip the increases to judges' salaries. Some would say the government has not done it very respectfully or at least respected the mechanism already in place. The government has also managed to clip the court challenges program, virtually abolishing it, and the Law Commission.

What do all of these things have in common? I am going to try to connect some dots. I could be wrong; I can only do this by inference. It is very difficult for me to figure out why, in a period of relative prosperity in this country where we have had balanced budgets and surpluses every year for seven or eight years, the government finds the need to get rid of the Law Commission and the court challenges program and to not implement the independent commission's report on judges' salaries. The only thing I can see that these things have in common is disposition over the last two or three years of the same sex marriage issue.

I recall the report from the Law Commission entitled “Beyond Conjugality”. It was a discussion of the law relating to spousal and non-spousal relationships. Part of the discussion dealt with many of the same sex marriage issues which this House has dealt with. I could not help but detect some disfavour on the part of many Conservative members about it. I have seen it at the justice committee. It is not always on the record, but it is there.

The court challenges program brings court charter challenges into the courts. Members will recall the same sex marriage issue, the redevelopment of the definition of civil marriage, was accomplished primarily as a result of litigation charter challenge. I am not certain whether the court challenges program funded any of that; it may have, but it is passing strange. I see a connection there.

I mentioned the Law Commission's report and now the judges who made these decisions that essentially required Parliament to act a year or two ago. I have simply had no choice but to draw the inference that the Conservatives' distaste for those decisions was a prime motivator in this, because I cannot see any economic or fiscal reason to turn attention to these very viable working mechanisms in our judicial sector.

The Law Commission which is being scrapped now was the reincarnation of the old Law Reform Commission, which was scrapped by the previous Conservative government in 1990 or 1991. A very strange thing. The Conservatives do not like law reform commissions. They junk them.

I appreciated the opportunity to make these remarks. I hope they will be helpful for the record.

[Criminal Code, November 6th, 2006]

Mr. Speaker, first, I sit with the official opposition, not the government. I am not in a position to give much of an undertaking here.

If the member will realize that the structure of the bill involves the federal government withdrawing from its enforcement of loansharking prohibitions in a way that allows the provinces to assume their proper commercial jurisdiction in regulating person to person institutional commercial transactions, then I can say pretty easily there is no need to give an undertaking that the federal government will not respect those other jurisdictions. The whole purpose of the bill is to recognize those other jurisdictions and to allow the federal government to essentially withdraw.

It is clear, however, that the bill retains, not imposes, the existing federal government jurisdiction over what it has always defined as a criminal rate of interest, which is the term that was used. In this place we call it loansharking. The foundational jurisdiction to proscribe and criminalize loansharking remains, but will not be used or applied if the provinces step in and regulate, as I understand the province of Quebec has.

[Criminal Code, November 6th, 2006]

Mr. Speaker, the hon. member should realize that this bill would allow the federal government to vacate an area where it had paramountcy, where it had jurisdiction, and allow the provinces to assume their rightful jurisdiction in regulating commercial transactions.

If the member has any complaint, it may have been that 75 or 100 years ago the federal government did occupy the jurisdictional matter of loansharking. At this point in time, there has been an agreement that the federal government will walk from its criminal jurisdiction involving loansharking if the provinces expressly assume their responsibilities in regulating these commercial transactions. It is a happy ending. It is not a creation of something new. It is the reworking of the federal legislation to precisely allow for provincial jurisdictions to operate.

My friend should be happy with the proposed outcome contained in the legislation. It does not at all attempt to regulate in areas of provincial jurisdiction. If that had happened, it happened 75 or 100 years ago. What is happening now is that the federal government is simply proposing a conditional withdrawal from this otherwise provincial area of commercial activity. On that basis, I think he would want to support the bill.

[Criminal Code, November 6th, 2006]

Mr. Speaker, my colleagues have invited quick passage of this bill in relation to which there seems to be a fair bit of support, and I certainly agree with that. One of the ways we can pass it quickly is not to do too much talking about it, and my remarks are offered today as part of the remarks of the official opposition on this bill.

Colleagues have probably had their attention brought to the recent decision of the Supreme Court of Canada in a case called A OK Payday Loan. That was a circumstance where customers of this particular operation had sued in a class action. At issue was the very high interest rates being charged by this payday loan business. As the court eventually determined, as I understand it, the moneys charged by this operation were at a level that constituted a criminal rate of interest, which is defined in the Criminal Code of Canada. That means an interest rate that exceeds 60%. Most of us will regard that as a pretty exorbitant rate of interest.

The point here is that the two jurisdictional worlds, the criminal on the one hand and commercial law on the other, clashed. As our colleague from the Bloc just mentioned, commercial activities outside of banking are normally regulated and administered jurisdictionally by each of our provinces under the property and civil rights heading in section 92 of the Constitution Act.

How do we draw the line between what is criminal and what is commercial? Our laws attempted to do that many years ago. The big difficulty we faced as a society when section 347 of the Criminal Code was first enacted was that organized crime/loan sharks were showing up in material ways across the country, and it was felt that the type of lending they did, which had no regulation, should be criminalized as being anti-social, so the criminal rate of interest rate was selected in such a way that anyone who lent an amount of money and collected at an interest rate beyond and above 60% was found to be in breach of the Criminal Code.

Doubtless that section of the Criminal Code, section 347, has protected many Canadians over the years, but with the growth now, with the proliferation of financial instruments, lending and access to credit and money, there are many ways that consumers now can access credit. One of those ways is this payday loan mechanism, whereby an individual who is employed can obtain a loan or an advance equivalent to some percentage of his or her paycheque and obtain it very quickly and easily from a payday loan business.

People may regard the payday loan business as kind of a bank loan. It is not a bank. It is simply a lending business that will lend money to the individual on the credit of a forthcoming paycheque a week or two weeks down the road. It looks like many Canadians find this a useful device, because the number of payday loan operations in Canada now has mushroomed in the last dozen years or so to the point where we have 1,300 payday loan operations right across the country. It looks like the consumer likes this mechanism.

I point out that it is generally for small amounts and for a very short period of time. It may be filling a niche that credit card companies, banks and credit unions are not. The issue has become, at what price are Canadians required to pay for their payday loan borrowings? In the case I mentioned earlier, equivalent interest rates are in excess of 60% per annum on the amount loaned. I suppose in our society now a knowledgeable consumer should be allowed to spend over 60% in interest if he or she wishes to have the money quickly. However, we are not removing the Criminal Code provision in what we are doing here.

We are going to keep a Criminal Code provision, but we are going to allow an exemption for a lawful business that lends money using this payday loan mechanism. The exemption will be based on the premise that a province or a territory is regulating the commercial operation. The Criminal Code will say that if a province is regulating interest rates and amounts and providing a supervisory regulation of that type of lending mechanism, then the federal jurisdiction will exempt that lending mechanism from our criminal law. We need to do that because under our Constitution, federal jurisdiction has paramountcy over provincial laws except where there is an exclusive provincial jurisdiction. Where there is an overlap, the federal law will normally govern.

Placing this amendment with section 347, will allow the provinces to assume their proper jurisdiction in the regulation of the commercial affairs of their citizens. However, at the same time we maintain the criminal prohibition with the 60% per annum cap where there is no provincial regulation. We are assuming that a province will provide a form of regulation that will essentially keep the same level of protection the consumers have had up to now.

This does not mean that loan sharks will have a field day. This means that genuine lending businesses, which I described as payday loan operations, can carry on with their legitimate lending services in cities and localities across the country, just as they have up until now, without fear that their practices will offend the criminal law. Their practices might offend the provincial regulatory law that has to be in place, but they will not have to deal with the Criminal Code provisions. Usually it is a lot more difficult for a citizen or a business to deal with a Criminal Code provision than it is for them to deal with a commercial provision. There is no stigma attached to compliance with regulatory requirements as there is to non-compliance with Criminal Code provisions.

The legislation took a number of years to develop. The initial consultations began a few years ago under the previous government and it involved reaching an agreement with the provinces and the territories that would allow them to assume a regulatory role. Those agreements, understandings, consultations and accommodations were all accomplished, and the government now finds itself in the happy position of simply having to introduce the law and getting it passed. I am assuming there will be a fairly high level of support for this. The official opposition will support the bill and we hope it will receive passage soon as well.

[Request for Emergency Debate, November 6th, 2006]

Mr. Speaker, I want to move for an emergency debate under Standing Order 52. The matter of the emergency requiring debate is the report from credible Canadian and other scientists in the journal Science that all the fish species in our planet's oceans will be dead, or collapsed or extirpated within some 41 years. Not since the last ice ages or the meteor strike, which we believe extinguished the dinosaurs, has this planet faced a threat, but this threat is wholly man-made and we know it is impossible to stop our man-made degradations on a dime.

No one is the owner or custodian of our oceans. If we do not begin to act now, right now, the rate of species collapse will accelerate and may be unstoppable, like a row of collapsing dominoes.

It took us a decade to develop the Kyoto protocol, and we are not finished with it yet. If one is a Canadian 20 years of age, this eventuality, predicted by these scientists, will change the world as we know it. There is no justification for delay in responding.

This is an emergency. We must talk now. We must act now. If we do not, here in this place, then where else on this planet? In our country, with coasts on three oceans, this is the place and this is the time. We must begin to act now.