Derek Lee

[Points of Order, November 1st, 2006]

Mr. Speaker, this point of order concerns the presence of Bill C-257 and Bill C-295 on our order paper. Both of these bills are private members' bills and they provide for prohibitions on the use by employers in federal jurisdictions of replacement workers during a strike. Bill C-257 was passed at second reading by this House on October 25, last week.

Both of these bills are substantially the same and I proceed on the assumption that the Speaker will agree that they are substantially the same, one minor difference between them being that the quantum of a fine or penalty for an infraction is slightly different.

The passage or adoption of both of these bills would create a legal impossibility or confusion here for our Parliament and for the public. The House is now faced with this issue. Fortunately, we do have some wisdom of a previous House to rely on.

The question is, what should happen to the second bill, which the House has not voted on yet? I refer to the ruling of the Speaker in this chamber on October 29, 1957, almost exactly 49 years ago, when a bill introduced by a member to provide for vacation pay for employees in federal jurisdictions was substantially the same as a government bill then introduced. From the journal, the Speaker quotes from Erskine May, 15th Edition, page 499:

There is no rule or custom which restrains the presentation of two or more bills relating to the same subject, and containing similar provisions. But if a decision of the House has already been taken on one such bill, for example, if the bill has been given or refused a second reading, the other is not proceeded with if it contains substantially the same provisions, and such a bill could not have been introduced on a motion for leave. But if a bill is withdrawn, after having made progress, another bill with the same objects may be proceeded with.

Here I refer the Speaker also to Beauchesne's sixth edition, at page 198, note 653.

If the Chair agrees that because of the adoption of Bill C-257 last week some step must be taken to deal with Bill C-295, the question is, then, what is to be done?

Bill C-295 is currently on the order of precedence and could ordinarily move to a second hour of debate and a vote as early as next week, I think next Tuesday. I think it is clear that this bill should not be further debated and should not be voted on at second reading. The bill should be removed from the order of precedence because that listing is specifically designed to provide for debate and disposition by the House.

I would submit that it is not necessary to have the bill totally withdrawn because it is possible that Bill C-257, which was passed, could be defeated or negatively dealt with by this House or a committee in the future.The way would then be clear for the mover of Bill C-295 to proceed with that bill.

However, we should also note that the member introducing Bill C-295, which has not been dealt with at second reading by the House, has already been selected by our rules to move a bill that he has selected, and he has chosen this one. It would be arguably unfair to prejudice his position by placing him and his bill back in the initial order paper, at the back of the line behind all of the members who have private members' business.

What I am suggesting is that the Speaker place the bill aside in a type of procedural holding place, a procedural position not yet provided for in our rules but adverted to in the 1957 Speaker's ruling, so that the bill could be placed on the order of precedence again in this session, or even in a subsequent session, if that is consistent with the procedures for private members bills'. As for Bill C-257, if it is defeated or otherwise removed from the order paper, this issue could also be reviewed, of course, by the procedure and House affairs Committee.

I hope my comments are helpful to the Chair and will enable the Speaker to take the most appropriate action on this matter.

[Criminal Code, October 16th, 2006]

Mr. Speaker, the hon. member has offered a scenario that prejudges most of the facts. In other words, we have an organized crime scenario. We have the classic accumulation of wealth by the individual, conspicuous wealth, and not many other facts to go with it. In that fact scenario it seems awfully easy to say that the person has $25 million worth of assets and no other visible means of support that can be shown, we will take the person's assets, sell them and turn the money over to the police.

It sounds all right except that if we take that rule and apply it to every other Canadian in every other fact scenario, it may produce some unfairness. It is at the wording of the procedure that I would want to look closely. If the member has some wording, we should talk about it and do something that is good for the public.

[Criminal Code, October 16th, 2006]

Mr. Speaker, yes, that is generally the envelope I was referring to in terms of the seizure of a computer that contained data. Even though the computer and the data is seized under an order, it is not clear that the judicial order contemplates the use of the information on the hard disk as possible future evidence and I think we should be careful about that.

Most people would say that if the guy has done something really wrong and his computer shows it, yes, it should be evidence. However, in our justice system we usually do not make inferences about people's guilt. Our system is based on a person being presumed innocent unless the state or the courts find the person guilty.

I am very reluctant, as a legislator, to alter that balance. The member properly makes reference to the increasing use of reverse onus situations which lowers the burden on the state to produce evidence to get to a certain type of proof.

I am surprised at the scenario that the member has mentioned. It sounds like it may be provincial legislation but normally we do not impose reverse onus situations. I know there are two or three of them in the code and in other pieces of legislation but we do so only reluctantly when there is a need that we could describe as, to use the words of the charter, demonstrably justifiable in a free and democratic society.

I think the courts would frown upon increasing the use of reverse onus situations simply because while most people in Canada would be in a position, in normal language, to rebut one of these inferences made by statute, there have to be many Canadians who could not on their own rebut the inference without the use of a lawyer or without someone else speaking for them. We must remember that there are Canadians with various levels of education and various levels of literacy. We must be careful that when we pass a law we have each of those persons in mind when it comes to making them bear the burden of a particular procedure in a statute.

[Criminal Code, October 16th, 2006]

Mr. Speaker, this is one of those bills where there is not very much in the way of partisan attitude. It comes across almost like a catalogue, and many members have spoken to the it. Running through its various sections, most of them seem fairly technical.

My remarks will be directed to what I think is the underlying purpose of the bill, and from where it came.

While most of the amendments look fairly technical, they have been generated through a great deal of consultation and meetings held across the country, not by the parties but by professionals in the various ministries. I am speaking of Crown prosecutors and in some cases consultations with police and defence attorneys. All of this has been focused on meetings of federal, provincial and territorial officials, then with the federal, provincial and territorial ministers, including the Minister of Justice. Each of these apparently small amendments is intended to improve the efficiency, fairness and efficacy under the Criminal Code operations.

I have noticed an underlying theme of the thinking and creativity on the part of law enforcement, Crown prosecutors and other counsel, in using the provisions of the code, as it has been updated every few years, to better address the problems of macro-organized crime such as gangs and organized crime groups. It is usually in the large cities where these things show up and in order to deal with big city problems, we have to get big city professionals together.

The Criminal Code has quite a number of useful provisions in it, which can be used if we can get the various parties to work together. Keep in mind that it is not one level of government that makes the justice system work. Both the federal and provincial governments have split the corrections piece, or the execution of sentences at the end of a conviction. The front end is where the federal government enacts the Criminal Code and puts in place basic criminal procedures, but the provinces handle the prosecutions and convictions in the courts. Therefore, provincial crown prosecutors carry most of that load. It is also a huge responsibility for our municipal police forces that do most of the work in responding to crime, investigating and laying charges and providing evidence.

The bill is an example of a collaborative amendment of our laws, but I could not help but note recently how authorities have come together to provide much better use of the bail provisions of the Criminal Code when it comes to gang activity. It takes a lot of work but in the end the product is a whole lot better.

I will speak of the Toronto experience. Police has been very successful in gathering intelligence, making arrests and prosecuting street gangs. We used to find that arrests would be made and gang members would be arraigned, but they would be released pending a trial. It takes three, six and sometimes nine months to get a complex trial organized in our large cities now, which means gang members are back out on the street on bail.

For the petty criminal that may work, he or she may stay close to home, show up for trial and justice will be done. However, police noted for many years that as soon gang members were back on the street, they would be right back into what they had been doing. Over time it became apparent that it was possible to use bail conditions as the mechanism for controlling the activities of these not yet convicted gang members, or alleged gang members, and the police and the prosecutors became very good at it.

In my neck of the woods, it all came down to what the police called bed checks. The arrest of gang members might involve five, 10, 15 or 20 members. In one case, it was over 20 members. The bail conditions imposed on the interim release were very strict. In many cases the individual had to be back in a specific home by seven, seven-thirty or eight o'clock at night.

It is one thing to set out the rule and the bail condition, but it was another to enforce it. Therefore, there was a need to craft the appropriate bail condition for the alleged offender, or the accused. Then there had to be the expenditure of police resources to go to a home every day or every second day to ensure that the accused person was complying with those conditions. Where the person was not compliant, that involved a subsequent charge and a tightening of the bail conditions. This took a lot of police work and expenditure of public funds, but it worked incredibly well. The bail conditions either worked, with the person off the street at night, or the bail conditions self-tightened, as there was a non-compliance, which ended up, in some cases, with the accused person being required to be in custody until trial.

The creative use of bail conditions began to work as a crime-fighting tool. I will not go into all the reasons why it was a crime-fighting tool, but from my perspective it was a good use of the judicial and police interface. While it was expensive, in terms of policing hours, it really worked. That type of police-prosecutorial collaboration is continuing, at least in the community I represent. I hope it is working similarly in other parts of Canada.

The bill is a reflection of efforts by the criminal justice community to produce legislation that is more efficacious in achieving these types of goals. Sometimes it is a cost efficiency, or a safety efficiency or a procedural efficiency.

The first one I notice sets out the power to make an order that an offender not communicate with identified persons while in custody. This does not involve a bail scenario, but it involve while a person is in custody. Frankly, it affects the circumstances where gang members issue threats or instructions while in custody. This is a new provision. It would allow the imposition of a restriction, which might under our charter, be seen as a restriction on free speech. However, it is clearly a restriction on people who are in custody from communicating with other specified persons. If they do so, it is a breach of the condition and a Criminal Code offence. This is a good thing if properly used by police authorities. I presume there is always room for abuse, but I am not even suggesting that would happen. The committee will have a chance to look at the intended operation of this provision. From this point of view, I like the look of it.

There are four other sections I wanted to make note of, in the same vein, and that is improving efficiency.

One is the increase in the summary conviction offence filing from $2,000 to $10,000. That is the maximum fine. Because the Criminal Code does not have an inflation escalator, that $2,000 fine looks awfully small for some offences now. Therefore, this is a good change.

The second item is the suspension of a conditional sentence order or a probation order during an appeal. There was a lack of clarity when a person appealed a conditional sentence or a probation order. There was a lack of clarity on both the part of the convicted person who was appealing and the part of police as to whether components of the order were in place while the appeal was under way. This simply clarifies that and it is a good idea.

The third item is an excellent addition to the code. After a person is convicted, this provision would allow a delay in the imposition of a sentence so the offender can participate in a provincially approved treatment program. What has happened up to now is that the judge, prosecutor or defence attorney would sometimes find a way under the rules to postpone sentencing until the offender could engage in some form of treatment to deal with an alcohol or drug dependency or other medical disability.

Now the code, if this passes, will allow the delaying of sentencing so that the accused or convicted person has an opportunity to participate in a recognized treatment program that would allow a judge to select the most appropriate sentencing following the treatment provisions. I do not know how much time would be involved but we will certainly scrutinize that in committee.

The last item I want to mention is the ability of the court to order the seizure of a computer that had been used in child luring on the Internet scenario. That makes good sense. We seize other private property where proceeds of crime situations are involved.

What I want to note for future reference, and the committee will certainly look at this, is that the seizure of computer hardware is one thing but computers now contain information on the hard disk. What is not clear is what happens to the data on the hard disk of a computer that is seized. Is it the intention that the data be rendered inaccessible or is it possible that the data can be accessed and used by the authority seizing the computer? Will the police have the ability to review that data without a warrant, make use of it and turn it into evidence or will it not be evidence? What about other personal and business data?

I do not think we have an answer to that and that should be clarified. What appears to be a simple seizure of a computer may actually be the seizure of a sizeable amount of information, some of which, in a child luring scenario, could be an indicator of further criminal activity by the person from whom the computer was seized. What should happen to that information? Should it be usable as evidence or should it not?

I applaud the many professionals in law enforcement, in the provincial ministries and in the federal ministry who would have collaborated on and assembled quite a good number of technical and administrative procedural changes in the code, which will make the code more efficient, more effective, just as fair and just as charter compliant but a better tool for use in tackling the criminal law problems that we have in many places across the country.

[Criminal Code, October 2nd, 2006]

Mr. Speaker, those are excellent comments. I recently viewed a commercial to which I took some offence. It involved what I regard as if not reckless, very fast driving of an automobile in a situation that did not warrant it. That was an automobile manufacturer.

I am saying this a little bit tongue-in-cheek, but if we are thinking about putting warning labels on alcoholic beverage containers, maybe we should have warning labels on speedometers of automobiles. There are a lot of perky, fast automobiles out there that are quite capable of killing someone very quickly.

As the member is alluding to, the sooner we get to that issue we will all be better off, and I think the automobile manufacturers may have a role to play in that.

[Criminal Code, October 2nd, 2006]

Mr. Speaker, the business of preventing crime lies with the federal government. In many areas involving social legislation such as health and welfare, the provinces have a role to play and it interfaces with our education system.

I know that Health Canada, from the federal jurisdiction, invests Canadian taxpayer money in dealing with the war against drugs. Anti-smoking campaigns were very visible, and still are, with I believe a fair bit of federal money involved.

Licensing of driving is very much a provincial matter as is education. Many of the drivers testing the limits of their automobiles seem to be young, but they are not the only offenders, and I understand that. If the bill is passed, and I hope it is, collaboration between the federal government, the National Crime Prevention Council and provincial authorities, which have an interest in educating young people about the real world, the risk of death and injury to themselves and others, I hope might take place and it might produce some salutary benefits.

[Criminal Code, October 2nd, 2006]

Mr. Speaker, the member makes a very good point. The bill, on the face of it, does not make an attempt to go out and deal with the deterrents or public education in a direct way. There is hardly a time in my life that I cannot recall a story about one, two, three or more young people in a car, which was involved in some kind of a street race, who were not seriously injured or killed. This seems to happen every few years in a very conspicuous way at some place across the country.

I do not have enough information to answer the member's question properly. The member has raised the point about whether this new law allow police to intervene in a more robust way in communities across the country. Will the bill encourage cities, towns and councillors to perhaps make some place available for racing automobiles, such as an automobile track?

I am assuming that most of the people driving quickly in these road racing scenarios are people under 30 years of age. There could be some older gents and ladies involved as well. The government is trying to send a message to the people, who would drive in this fashion, to look for ways to cause them to rethink their ways and find safer ways to carry on their driving competitions.

[Criminal Code, October 2nd, 2006]

Mr. Speaker, there is the legislative intent of the drafters. I think this is the same definition that was included in the previous bill in the previous Parliament. On the face of this bill, the definition only includes a circumstance where there is at least one more car involved.

Now, what if the other car happens to leave the starting point 60 seconds later or five minutes later or starts at a location remote from where the first car is? Let us say that one car starts from the Petro-Canada service station at one end of the road and the other car starts from the beer store on the other side of town. Is that two cars racing? I am going to leave that to the hon. member, in all his wisdom, to figure out.

It might come within the ambit of the definition in that it may in fact have two cars, but it is not clear to me that police who would investigate and prosecute would be fully able to present the evidence that there were in fact two cars involved in a race if the police were in only one location. I think that is probably a subject that would warrant further discussion at committee to try to better capture the legislative intent of the bill.

[Criminal Code, October 2nd, 2006]

Mr. Speaker, first let me say that I am in support of the objectives of the bill and the purpose that has been put forward. It is similar but not identical to a previous bill that was adopted in the House, as we all know, at second reading.

The term of “street racing” and criminalizing street racing is a legislative attempt to criminalize an area of activity that had fallen below, no pun intended, the radar screen in the Criminal Code. Provincial highway traffic acts quasi-criminalize reckless driving and careless driving, but in the Criminal Code the mischievous conduct, the criminal conduct, usually begins at the low threshold that is called dangerous driving. Some forms of that may actually work their way up into criminal negligence or what used to be called motor manslaughter.

So in order to apply the Criminal Code now, we actually have to get some kind of incident, some kind of damage, some kind of bad thing happening as a result of the reckless, careless, dangerous or criminally negligent driving.

Speeding, of course, is a crime. One could ask, do our speeding laws not cover road racing? They do, but the problem with simple speeding, if I can put it that way, where there is no injury, damage or death, is that those circumstances usually require a police officer or a radar trap to be there in order to get the evidence to convict for speeding.

In a road racing scenario, generally speaking, we probably would not need radar. We might need to have a policeman or some other evidence of the race, but we would not have the need to record the actual speed. We would not need to have a police car chasing the racers. A visual observance of a street race would probably be sufficient to get us into an offence territory and into at least the laying of a charge.

I will leave the evidentiary stuff, but it is clear that police across the country have been frustrated with this kind of problem. To now push the Criminal Code down into that territory is probably going to help them enforce a bit more order on the streets where racing has been a problem. It is not necessarily a problem across the country, but it seems to pop up in regions. There have been some very serious implications as a result of the racing that does go on.

I want to move into some technical areas, having said very clearly that I support the initiative. I want to direct my attention and remarks to some technical aspects of the bill, because I think most bills, like this one, need a bit of a tweak, a bit of an adjustment, as they go through committee and the House. I am going to suggest a few areas in which the bill may be inadequate or may have a problem.

The first one has to do with the definition of “street racing”. As I read it, I note that it is really quite simple. The bill states that “street racing means operating a motor vehicle in a race with at least one other motor vehicle on a street, road, highway or other public place”.

That is okay as it stands, but as I read it, it seems to include what we would call road-rallying. There are organized sport road rallies around the country. People do this quite legally. They do not usually do this in the city, but sometimes they do. This is usually done in a rural area. These drivers use public roads and highways for the road rally. It is essentially a race. The rally drivers are released once every couple of minutes or five minutes. There is a race. It is clocked.

It seems to me that the definition we are using in the bill may criminalize an area of conduct that we just call road-rallying. There are probably hundreds or thousands of road rally enthusiasts out there across the country who may have a concern about this. The bill as it is written now does not exempt this type of organized sport rally activity and seems to criminalize it.

The second area I will call the Formula One road racing, the very highly organized sport racing that happens with professional drivers. Sometimes it happens on a track, but other times it happens on portions of streets and roads in a city or a location where streets and roads have been blocked off, closed or otherwise.

One could argue that if one blocks off the city street that is being used for the Formula One race, it is no longer a public street. It is not really a street any more as it has been blocked off and closed. I suppose I could accept that, but the definition also uses the term “or other public place”. It seems to me that the middle of a city with blocked off streets may still be a “public place”, although there may not be a street.

I think the House and the committee are going to have to look at that to make sure that very justifiable routine Canadian participation in these motor sport events is protected, be it the professional speed driving that happens on tracks or in Formula One racing or similar type sports or road rallying.

The second thing I want to discuss has already been mentioned. There is probably not a solution to this. The definition does not deal with a solo race against the clock. I do not know how often that happens. A solo race against the clock is certainly speeding, but we are back into the evidentiary issues that I referred to earlier. If there is not a race with another car or with more than two cars, this bill would not criminalize it.

The third thing I want to mention is that the bill quite properly sets out penalties for different levels of damage or harm done as a result of the road racing. It also creates motor vehicle licence suspension periods that escalate upward depending on the seriousness. It seems to me as I read it that it is not clear when a second offence occurs.

When someone is convicted a second or third time of this type of offence, there is an escalating penalty, but because the road racing offence is broken down into four or five different parts, it is not clear whether, if someone is convicted of one part and subsequently charged and convicted of a second part of the bill, it constitutes a second road racing offence. It is the way the offences are described in the bill. If it is our intention to have a second or third component of the same Criminal Code prohibition constitute a second offence, then I believe we are going to have to say it much more clearly.

The last thing I want to say is again fairly technical. As I mentioned earlier, the bill criminalizes simple road racing. I would describe that as being on the lower end of anti-social conduct. At times it can produce horrendous results. Speeding is simply bad. I am not saying it is ever good, but speeding recklessly, carelessly, dangerously and criminally negligently is a serious problem.

The bill begins by addressing street racing where it has not reached the threshold of criminal negligence or dangerous driving. It is conceptually not clear to me what our intent is when the road racing activity crosses into this other threshold. It is not clear to me which offence is intended to apply.

If in fact a clear dangerous driving scenario evolved out of a road racing scenario, then it is not clear to me which statute should apply when the police lay charges. In my head, I think it creates some potential double jeopardy scenarios. It might not, but I would like to be able to canvass that further.

On the assumption the bill is adopted at second reading here, I would like to address with more precision the actual legislative intent for road racing which at the same time would constitute criminally negligent driving or dangerous driving under Criminal Code offences.

Those are my remarks on the technical side.

I will close by reiterating that I do recognize, as I think all colleagues in the House do, that street racing is a very serious and potentially dangerous form of activity from place to place. It is quite appropriate for the Criminal Code to reach out, proscribe it and allow our police to do their job in reducing the instances of this right across the country.

[Points of Order, September 28th, 2006]

Mr. Speaker, during the course of debate on question of privilege, the Parliamentary Secretary to the Prime Minister was clearly reading and quoting from his BlackBerry. Do the rules require him to table the BlackBerry as a document?