Derek Lee

[Business of Supply, December 9th, 2010]

Madam Speaker, I will be splitting my time with the hon. member for Vancouver Centre.

The debate we are on today is part of a supply day procedure, and I am responding to the member for Peterborough when he said we should be debating other things.

I just want to note that at the end of this debate we will actually be doing an appropriation involving some $4,359,000,000 and change. So this is a debate about the motion itself, but it is followed by the supply day procedures, of which this is part.

I am happy to have a chance to talk about the charter. We do not often get an opportunity to do that. The hon. member who just spoke, the chair of the justice committee, did provide a very useful overview of the charter provisions.

Looking back over the last 28 years, I would have to say the charter has been a pretty fundamental piece of being a Canadian, but I am not so sure it is the most fundamental piece. I rather think our geography and our history are what makes us most Canadian.

The charter is a part of that history. However, it is not actually just history, of course; it is a living document. It shapes us around this place most days.

I was out on the lawn, on the common, as a citizen in 1982 when the patriation of the Constitution and the signing of the charter took place, including Her Majesty. It was a memorable moment, but in looking back, I found that the biggest piece of that day was really the patriation, bringing the Constitution to Canada from the United Kingdom.

The charter was a piece of that. I do not think I understood how big the charter was. The reason that the charter was big is that it kept on living. Every year, the charter lived; the patriation is history. That was 28 years ago.

As the chair of the justice committee just said, many of the rights contained in the charter were already provided for in Canadian law. That law reaches back a long way. We can get a copy of the Magna Carta from 1215; a copy of the 1689 Bill of Rights, which is here in the library; and the 1960 Canadian Bill of Rights, which the member described. Those are all documents involving rights, and even those documents live today.

I would just reflect on four perspectives that I think were there in the minds of those who debated and enacted the charter in 1982 and in the year or two leading up to it. There are more than four, but I just want to reflect on these four.

One is the fundamental rights of the person. We wanted to get that right.

Second, there were limitations on the state in terms of its ability to resort to arbitrary measures.

Third, there was the place of our first nations in our Constitution, in our Canada.

The fourth was the inclusion of the provinces in all of the processes, the legislative process and in our great national enterprise.

The first two are the ones that I want to come back to, those being the rights of the person as well as limitations on the ability of the state to resort to arbitrary measures.

Most people think of the Canadian Charter of Rights and Freedoms as being a menu or list of rights. I think, although I do not know this, that in the mind of the prime minister at the time there was a large concern about the role of the state in modern society.

I believe he could see that the modern state, without constraints, had many powers, legislative, coercive and taxation, and there was no end to it, over its citizens. I think he and others saw the need for a charter that would constrain the government of the day, in whatever day, in what it did so that it could not use arbitrary and harsh measures.

Why did he feel that way? Why did he sense that? We note that in our constitution, under the federal powers, section 91 of the Constitution Act, 1867, one of the powers is peace, order and good government. In order to have peace and good order, historically the state has been relied upon to impose that order, to impose the peace, even if it had to go to war. That federal jurisdiction, that constitutional obligation of the state, to provide peace and order could be seen to fly in contrast with the positions of citizens from time to time, certainly in terms of how it would go about imposing that order.

Around the years 1968, 1969 and 1970, we had the FLQ crisis where the government felt it had to impose the provisions of the War Measures Act on citizens. At the time, looking back, I think it felt those were the only powers the state had to adequately respond to the request of the province of Quebec.

As time went on and in the light of the charter, the War Measures Act was removed and other legislation was adopted to fill in some of the gaps. I think the legislators then saw that the provisions of the War Measures Act were way over the top and there was nothing they could see, if there was a majority government in place, to constrain the use of the War Measures Act.

At the same time, I recall a series of incidents in Poland, where the communist government was repressing a protest that became violent. There were labour unions and civil rights people. I remember people comparing what was happening in Poland to what was happening here.

One could not help but sense that while both countries were trying to impose or provide order, and they were both using the mechanisms of state governance using police or military to do it, and while we were two very different countries, we seemed to be using almost the same mechanisms. I think there was a sense generated then that we needed a constitutional change to provide guidance and limits on the use of state power.

This motion was drafted by the opposition to focus on comments that had been made by not so much members opposite, but by prominent Conservatives. I have tried to figure out why complaints about the charter come from individuals who support the Conservative Party.

It has been pointed that this is a country of lawful and reasonable dissent. It is quite okay for people to disagree with our laws or even our constitution if they do so peacefully. I cannot quite figure out why it happens, and it has happened in print and verbally. I do not think these are not miscues. Some of these individuals really believe there is some problem with the charter.

Notwithstanding all of the whining and carping that has come from some of these individuals in relation to the Canadian Charter of Rights and Freedoms, I cannot recall a single instance where any one of them has indicated which part of the charter they do not like or which provisions should be changed. In the debate in this place, I find that almost all the members, in the end, support all the provisions of the charter. However, there is sometimes a reaction to a court decision, et cetera.

In any event, as a citizen, as a legislator and as a lawyer, the charter has affected me, my family and my work in this place and it will continue to do that well into the future for the benefit of all Canadians.

[Protecting Victims From Sex Offenders Act, December 7th, 2010]

Mr. Speaker, it was always my impression that the federal law lagged in some respects in terms of its ability to bite down and really hit the nail on the head.

There are reasons for that. When Ontario as a province created its registry, it did it as a province looking after its citizens in its own jurisdiction, not as a criminal law jurisdiction. It was able to go directly to the public purpose intended and describe things with great precision and make the thing work.

In Ottawa, federally, when we passed our legislation, we had to pass it under the screen of the Charter of Rights and Freedoms and the evolution of our criminal law. We needed, in every case where we constrained an individual liberty or freedom, to make a case, a justification for it. In some cases, the law was not procedurally robust enough.

The province has kind of had a bit of an edge. It did not have to worry about the court review of the legislation and the charter scrutiny in quite the same way that the federal government did. That is why we are on our third rewrite of this legislation, whereas the province saw what the problem was, legislated it and put something in place that the police community was comfortable with. As far as I can see, there has not been any abuse.

Hopefully, the federal legislation has caught up to where it should be, it will work and there will not be any abuse.

[Protecting Victims From Sex Offenders Act, December 7th, 2010]

Mr. Speaker, there are two parts to the question. There is the incoming person and the outgoing person. The incoming person, as I understand it, is a person who comes back into Canada under the International Transfer of Offenders Act. That person has already applied to come back in, and I think most Canadians would see it as natural.

If the person had been convicted of one of these, and it is almost every sexual offence now, it would be recorded back here so that the person would be on the same footing as anyone who was convicted in Canada. That part is fairly straightforward, although it is sometimes difficult to compare offences committed in Canada with offences from other countries. However, do our best and we try to do it fairly.

The other part involves outgoing people, individuals who have been convicted here and who are on the sex offender registry and are going to other countries. I am actually a little nervous about that. On one side there is the possibility of the policeman in charge of the registry here sending all kinds of telegrams, notices and emails out, informing people of the individual to be visiting. I am quite sure it will not be run that way.

There may be requests from another jurisdiction, after the fact, in investigating a crime. Some guy from some city in Canada is visiting some place in the U.S.A. and there is a rumour so the authorities contact the Canadian police to ask if there is anybody like that around there who has a record like this. There is a place for that in police investigations.

I am a little bit nervous about having the police following every convicted sex offender around. I wish that the police could have followed Clifford Olson around. However, we need to have a balance between protecting the public and our individual freedoms.

I hope, as the bill is implemented, it will be implemented properly and fairly.

[Protecting Victims From Sex Offenders Act, December 7th, 2010]

Mr. Speaker, the member for Mississauga South asked a very good question. The short answer is the bill really does try to make the system work better.

One of the key elements of a system like this is enabling police officers to obtain the information they need in relation to possible sex offenders and to obtain it quickly. This statute has buried within it procedures that enable police forces to access that. Up until now there were complaints that it took too long, that it was too cumbersome and that the federal registry just did not hit the nail on the head for those whose job it was to investigate a matter, find a missing person or investigate an offence. Procedurally, some of those difficulties and obstructions in moving information around have been identified, and this bill deals with that.

On the other hand, as I pointed out, there is the meat chart approach of incorporating a whole bunch of offences and automatically everybody who has been convicted of them. That raises the issue of clutter and volume. Does it really reflect the risk that police officers look for or does it create a bureaucratic unmanageable list that is less helpful because it has so much data on it?

[Protecting Victims From Sex Offenders Act, December 7th, 2010]

Mr. Speaker, I am pleased to resume debate on this bill. When my remarks were interrupted just prior to question period, I was dealing with clause 2 of the bill, which would create a new section.

As we had discussed earlier, throughout the debate, this bill is about the sex offender registry. It is not clear to me why clause 2 was inserted into the bill. As I was pointing out, the bill would rewrite a section of the Criminal Code that deals with the criminal act of exposing one's genitals to a person under 14 years of age; that is, subsection 173(2). I just did not quite understand the relevance of clause 2 in this particular bill that we are dealing with. We have rewritten the section, or at least part of it, to say it is an offence for a person in any place, for any sexual purpose, to do that to a person under the age of 16. It is just merely the exposure, not any other sexual act.

The way the section was written previously, it applied to individuals under 14 years of age.

This would include 14- and 15-year-olds. It just seems to me quite odd that in the year 2010 we would criminalize 14- or 15-year-olds for the simple act of exposing genitals.

I am only guessing, but a provision such as this had to have been written by someone who was a little bit older. I cannot imagine that a young person would regard this as a serious criminal act, yet that is what this section would do.

In the end, I am probably going to end up voting in favour of the larger bill, but I am flagging this particular issue because it would criminalize the conduct as between two 15-year-olds that I am not so sure all Canadians would think was criminal. However, somebody, in writing this bill, decided that it would be criminal. In the particular case of two 15-year-olds, they would be dealt with under the Youth Criminal Justice Act; they would be dealt with as young offenders.

My point is that this would criminalize something and would probably insert it into the bill that we are dealing with here. Let me just say that although it is a numbered section in the bill, it seems to me that it would make an amendment to the Criminal Code by stealth. The bill was written for an entirely different purpose, that of dealing with the sexual offender registry.

In any event, I have made the point and I regret that it was included. However, I am sure there are Canadians who would disagree with me.

The next thing I want to talk about is the category of mental disorder.

This particular bill would include, in those who are made part of the sex offender registry, those who are not criminally responsible because of a mental disorder. That is fine. There are two ways to look at this and both are valid.

One way of looking at this is that, because someone has a mental disorder, he or she absolutely should be recorded in the registry. There is some sense in that. If someone has a mental disorder that may predispose him or her to the commission of a crime of this nature, then it does make sense.

Another way of looking at it is that, should persons with a mental disorder for a short period of time in their life become implicated in the act, should they have this type of difficulty, the act would actually, in many cases, put them into the sex offender registry and they might up staying on it for their lifetime.

It is not clear to me that in every case someone who has a mental disorder at a certain point in his or her life, being subjected to the virtually automatic procedures under the bill, should be placed in the registry indefinitely. It could be said that there are provisions in the act to either terminate or exempt the registration, but for individuals who are not rich, who are poor or without means, in many cases they may just drift through life and stay on the registry when they do not pose a risk. I wanted to ensure the record was clear on that.

I want the record to show just how comprehensive the legislation is. I will not read every section of it, but only the sections of the code that require someone to be included in the registry automatically. There are offences in relation to children, sexual interference, invitation to sexual touching, sexual exploitation, compelling the commission of other sexual offences, a parent or guardian involved in this activity, child luring, stupefying or overpowering for the purpose, living off the avails of prostitution and obtaining prostitution of a person under the age of 18.

In relation to those latter sections, the person who is accused and convicted is a person who might not even be involved in a sexual offence. Therefore, one might ask this. What risk of committing a sexual offence do those people pose and why should they be on the registry? I will leave that question unanswered.

The committee has reviewed the bill and has seen fit to include that section. My colleagues in the House believe there is a risk posed. I do not see it quite as clearly as they do. The linkage could be drawn between someone who lives off the avails of prostitution, but it is not exactly clear how he or she would be a risk to commit a sexual offence later on. I understand the human rights and the issue involving people who are subjected to the criminal and other subjugation of people of that nature.

The statute fortunately retains procedures for deleting, exempting and terminating the registry. However, in every case, it requires a court application. I regret the removal from the Criminal Code of a section which, in my view, was balanced, proper and guided these provisions in all of the years since they were first enacted in the 1990s. The last amendment to these sections occurred in 2007 under the Conservative government. It is not clear why it has decided to revisit it. I can see the general purpose, but three years later, it is not clear to me what the motivator is at this time.

I want to point out the section that was dropped, which states:

The court is not required to make an order under this section if it is satisfied that the person has established that, if the order were made, the impact on them, including on their privacy or liberty, would be grossly disproportionate to the public interest in protecting society through the effective investigation of crimes of a sexual nature, to be achieved by the registration of information relating to sex offenders under the Sex Offender Information Registration Act.

That provided the court with the opportunity, before a person's name was included in the registry, of saying no. In this case, the circumstances, the position of the victim and the offender were such that there would not appear to be any public purpose served by including the convicted offender in the sex offender registry. The facts might have simply been a one-off, a bad day, a family situation that was corrected, any number of explanations.

I regret that provision is gone and that our judges will not have the ability to balance the positions of the offenders and victims and the needs of future law enforcement. At least if this bill passes, it will be gone.

I want to refer to a concept that other members have called the automatic inclusion of people in the sex offender registry. What the government has put forward is a huge list of crimes, some of which I referred to earlier in my remarks. We are holding out that it is those offences that cause the inclusion in the registry. At the end of the day, people are being included in the registry, not offences. The statute seems to forget that we are dealing with people and not offences. I call it a meat chart approach.

I have not been able to determine if any offences of this nature have been left off the list. It simply says everything having to do with sexual offences are going on the list, everybody convicted a first or second time is going to be going on the list and has to provide DNA, and that is how it is going to be done. That meat chart approach, which varies from the judicial override that I described a little earlier, runs the risk of including in our registry a whole lot of names and DNA that will not be helpful to police enforcement.

I will confirm that my party will support the bill, notwithstanding the warts and flaws. I wish it could be otherwise but that is the nature of passing legislation.

[Protecting Victims From Sex Offenders Act, December 7th, 2010]

Mr. Speaker, I am pleased to engage in debate on Bill S-2 at the third reading stage. This is actually the first time I have had a chance to look through the bill at any depth or precision.

I have to say at the outset that my party and I support the bill both in principle and in much of its detail. As happens so often here, there may be minor details in a bill that are not to the liking of everyone, but we tend to give our bills marks out of 100 and anything that gets more than 50% or 60% seems to fly. However, in this case I too have some remarks on the bill, out of sensitivity for the area that we are legislating in.

The principle and thesis are good. We in the Liberal Party believe that more robust state intervention in documenting those who have committed sexual offences in the past would lead to improved police enforcement and greater protection for the general public. It is not just for the protection of children but for the general public.

I can accept that because, with 20/20 hindsight, there have been many public incidents across the country where sexual offenders have moved around and continued to commit offences without detection or at least without being apprehended. Most think that if these people had been properly documented, it would have allowed police to access records that might have allowed them to connect the dots, keep closer tabs and prevent offences of this nature.

One of the most important principles is the one that says inclusion of an offender on the sex offender registry should be based on risk to the public. It should not be seen as punishment. Punishment of a convicted sex offender should be handled by the court and the sentence should be appropriate. I think we all agree on that. However, the sex offender registry is intended to identify risk.

The approach of the government, as other colleagues have pointed out, raises the possibility of over-inclusion, of unnecessarily putting too many individuals in the registry, which may affect the workability of the registry. It essentially has to do with the efficiency with which the registry will be used to protect the public. I will come back to that later in my remarks.

The bill generally focuses on four classes of persons. Most of them, of course, are not controversial. The first one is persons convicted of offences of a sexual nature. The bill goes a long distance toward broadening the scope of those offences, and so there are a lot of different types of persons and offences now being included.

A second category is those who are not found guilty of a criminal offence of this nature but found not criminally responsible by reason of a mental disorder. In that case, there is no conviction but there is an offence. I will come back to that later as well. The third category is under the National Defence Act, for armed forces members who are not governed by the Criminal Code directly but by the National Defence Act.

The last category is individuals who come back to Canada having been convicted of this type of offence internationally. In most cases, they will have applied and been transferred back to Canada under an existing arrangement. The offence, conviction and facts are known, and there is a need to include some of those individuals in Canada's sex offender registry.

As I mentioned, this is not just a registry that lists a name, address and telephone number. The registry actually includes DNA, and here we are getting pretty much definitive identification. People who are required by court order to be included in the registry, or now in this legislation, virtually automatically, have to provide appropriate DNA samples, and that is recorded.

The bottom line, just in the overview of this bill, is that it is intended to enhance public safety and the existing procedures both for the appropriate inclusion of individuals, although the procedures in the bill are virtually automatic and do not directly address the issue of risk, and for access to the registry by police or appropriate police officers in Canada.

In reading the bill, I have to say I was rather struck by clause 2 of the bill. I am hoping I will have a chance to ask a question of a government member here later. Clause 2, for reasons that have not been explained, does not have anything to do with the sex offender registry, and it actually changes subsection 173(2) of the Criminal Code.

I know some of us will be uncomfortable when I go into this, but currently, subsection 173(2) criminalizes the exposing of genitals to a person who is under the age of 14. That is what the section was. I do not think it was ever explained, and in fact I took a look at the summary of the bill and it does not even mention this. This bill now criminalizes that same act for persons under 16. At first blush, one might ask what the difference is between 14 and 16 for exposing genitals, and I have to say—

[Protecting Victims From Sex Offenders Act, December 7th, 2010]

Mr. Speaker, I rise on a point of order, which has already been made. No matter how much the member massages the air around her bench, no matter how much she torques her voice, she has strayed off the topic, in my respectful view. I would ask her to please, out of respect for all the members in the House, get back to the issue in the bill. I do not mind listening to members stray a little, but I am here to debate the bill and the member has strayed way off topic, in my opinion.

[Immigration and Refugee Protection Act, December 7th, 2010]

Madam Speaker, the hon. member was congratulating an awful lot of people. At this stage, I would just say the bill still has a way to go, and it has to go to the other place, which is acquiring a reputation for not dealing very well with House bills.

In any event, I draw his attention to section 91. As the member knows, there are many social service referral agencies in almost all of our cities that assist with immigration settlement and all manner of issues involving new Canadians. They are a valuable resource. Many of them have the capacity to provide some immigration advice to individuals who come into their office for their referral or advice.

Section 91 very clearly prohibits the giving of advice for direct or indirect consideration. Many of the people in these agencies work full time and are paid for their work. I am just wondering if the parliamentary secretary can describe to us how people who are currently doing that work in these agencies across Canada will be exempted or protected from prosecution under the Immigration Act, given the wording that is in the bill, or is there some other policy that will assist them?

[Protecting Children from Sexual Predators Act, December 3rd, 2010]

Madam Speaker, I wonder about the hon. member's reaction to the question from the parliamentary secretary from Mississauga—Erindale who asked how one would feel if a person who assaulted a child got only the minimum 15 days.

I would be willing to bet the parliamentary secretary my personally autographed copy of Bill C-54 that he does not even know the average sentence that has been given out to offenders who have committed offences against children. He does not even know, yet in our debate he is challenging with the question of how one feels about a 15-day sentence, without any facts or statistical data at all. That is not a good way to debate public policy.

How does the member feel about that?

[Protecting Children from Sexual Predators Act, December 3rd, 2010]

Madam Speaker, I did not say one bill; I said a few. I think I mentioned the number three, or perhaps four. We have to get 15 down.

The member has partly made my point. He says they have trouble getting one bill through. Then they have trouble getting 15 bills through. If they would reduce it to three or four bills, they would only have trouble getting three or four bills through and we would get through this stuff a whole lot more quickly.