Derek Lee

[Criminal Code, October 23rd, 2003]

Madam Speaker, I am pleased to speak to Bill C-416, an act to amend the Criminal Code and the Youth Criminal Justice Act introduced by the hon. member for Portage—Lisgar.

This bill would result in amending the Criminal Code and the Youth Criminal Justice Act so that a court would no longer have to consider the particular circumstances of aboriginal offenders when passing sentence. The amendment would apply to both adult and youth offenders.

The specific section of the Criminal Code that is at issue is section 718.2(e). It states that:

--all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

The proposed bill would delete these last nine words as well as similar provisions in the Youth Criminal Justice Act.

The primary purpose of this principle is to encourage our courts to use restraint when considering imprisonment as a sentencing option. It is important to point out that this principle of restraint applies to all offenders, not just aboriginal offenders.

However, based on the fact that aboriginal offenders continue to be drastically over-represented in our criminal justice system and in our prisons, the principle stresses the importance of paying special attention to aboriginal offenders. Based on the history and current plight of aboriginal peoples in Canada, this special recognition is both necessary and justified. I therefore cannot support Bill C-416.

This relatively new principle of requiring courts to consider the circumstances of aboriginal offenders came into effect in 1996 by virtue of Bill C-41. This is one of a number of principles that were codified in that bill. Since that time, the courts, including the Supreme Court of Canada, have had an opportunity to consider this sentencing principle. I would like to share some of the comments that the Supreme Court made about paying particular attention to the circumstances of aboriginal offenders.

In 1999 the Supreme Court concluded in Regina v. Gladue that in sentencing aboriginal offenders section 718.2(e) required judges to consider the unique systemic or background factors that may have contributed to the offender having committed the crime, and then to consider whether there were traditional or cultural sentencing practices or sanctions that may have been appropriate for that particular offender in the circumstances.

The Supreme Court stated that aboriginal offenders:

--differ from those of the majority because many aboriginal people are victims of systemic and direct discrimination, many suffer the legacy of dislocation, and many are substantially affected by poor social and economic conditions.

In Regina v. Wells, a unanimous 6 to 0 decision in 2000, the Supreme Court upheld a lengthy prison sentence for an aboriginal offender who had sexually assaulted an aboriginal woman. When considering whether a conditional sentence would be appropriate, the court stated that the application of section 718.2(e) did not mean that a sentence for an aboriginal offender would automatically be reduced since the determination of a fit sentence required consideration of all of the principles and objectives of sentencing set out in part XXIII of the Criminal Code.

The court stated that while section 718.2(e) mandated a different methodology for the sentencing of aboriginal offenders, it did not necessarily mandate a different result. Section 718.2(e) did not alter the fundamental duty of the sentencing judge to impose a sentence that was fit for the offence and the offender.

The court further restated the principle set out in the earlier decision of Gladue, that at the more serious end of the range of offences it would be more likely that non-aboriginal and aboriginal offenders would receive similar sentences. The court confirmed that the section did not mean that aboriginal offenders must always be sentenced in a manner that gave greatest weight to the principles of restorative justice and less weight to goals such as deterrence and denunciation.

In the Wells decision, the Supreme Court confirmed that the trial judge, in imposing a 20-month sentence, correctly applied the sentencing objectives of denunciation and deterrence to a serious sexual assault.

The Supreme Court in Wells said, however, that in appropriate circumstances, a sentencing judge may accord the greatest weight to restorative principles notwithstanding the fact that an aboriginal offender committed a serious offence.

The court stated that a just and appropriate mix of accepted sentencing goals depended on the needs and current conditions of the particular community where the crime occurred. The court also rejected the notion that restorative sections were necessarily lenient. In fact, the court pointed out that making reparations to the victim and the community might be more onerous than serving a short prison sentence.

The Supreme Court, after fully considering that section, concluded that this provision did not give preferential treatment to aboriginal offenders but sought to treat aboriginal offenders fairly by recognizing that their circumstances were usually different.

I fully support the balanced approach that has been set out by the Supreme Court in applying section 718.2(e) of the Criminal Code.

I am also pleased that section 718.2(e) of the Criminal Code has encouraged the development of programs and services to assist aboriginal offenders across the country. For example, in Toronto, a “Gladue court”, if we want to call it that, has been established and that makes section 718.2(e) work the way the Supreme Court has set out.

The government continues to be concerned about the over-representation of aboriginal offenders in the criminal justice system. This was confirmed by the statement made in the Speech from the Throne in 2001, opening the first session of this Parliament. It said:

Canada must take the measures needed to significantly reduce the percentage of Aboriginal people entering the criminal justice system, so that within a generation it is no higher than the Canadian average.

In conclusion, there is no doubt the aboriginal community is vastly over-represented in the criminal justice system. The government is continuing to make efforts to change this; however, the causes of over-representation involve complex social and economic factors, addictions and disadvantages. These are historical and not easily dealt with.

Despite indications that the courts are supporting the sentencing provisions in the Criminal Code that encourage restraint in the use of incarceration, the government continues to be concerned about the incarceration of aboriginal offenders. The government will continue to make efforts to ensure that aboriginals are not over-represented in our prisons. Paying particular attention to the circumstances of aboriginal offenders at the sentencing stage is only one small part of the overall plan to reduce this over-representation.

Our society needs to focus on the root cause of crime so that long term changes will result. For example, we are funding programs for aboriginals through the national crime prevention strategy, the aboriginal justice strategy, and the youth justice renewal initiative.

The government is committed to working with our aboriginal people and all Canadians to contribute to a safer and more just society.

[Seniors, October 1st, 2003]

Mr. Speaker, I want to bring to the attention of the House that in October we recognize the International Day of Older Persons and in November we recognize National Seniors Safety Week. I also want to restate our collective obligation to prevent the neglect of our nearly four million Canadian seniors.

As announced in the February 2003 budget, the federal government has established compassionate care employment insurance benefits for workers who have to be away from work temporarily to provide care to a member of their family who is gravely ill. Further, to help identify the challenges we may face in achieving quality of life for our elder persons, the life they deserve, the Prime Minister announced on September 17 the creation of a Liberal caucus task force on seniors. The task force will examine and report on issues including abuse, poverty alleviation, disability supports, housing and home care.

The contributions made to Canada by our seniors are well recognized, but we must be mindful of the various forms of neglect to which seniors are exposed. I would like to take this opportunity to urge all Canadians to continue their support of the efforts--

[Supply, September 30th, 2003]

Mr. Speaker, I am not so sure that the individual mentioned is my leader. My leader sits right over here on my left, but the member can draw connections wherever he will.

I have to be very brief. I have no problems with any province looking at PR, not at all. They will make their own decisions. But a province is a province, which is so big, and Canada is a country of regions, which is much bigger.

I have already indicated why I like the structural bias in the current system. It might be interesting to see the provincial experimentation if they really do go there. I am not so sure they will. If they do, I will look at it objectively.

[Supply, September 30th, 2003]

Mr. Speaker, I think the member's articulation of the problem is bang on: there are two classes of MPs. I do not like two classes of MPs. If the MPs are appointed from lists, then it is no different from having the Senate appointed from lists.

If the system were to allow for the election of the so-called PR representatives I would not criticize it so aggressively, but right now all the systems I have seen involve the party hacks list and members sitting in a House who do not represent a constituency and who are accountable not to particular electors but to party administrations.

While that may work in some countries, I believe that this country is best served by the existing system, which has, I agree, the bias in favour of producing a majority in the House without necessarily having a majority of the popular vote. I like it and I do not think it is broken.

[Supply, September 30th, 2003]

Mr. Speaker, the member refuses to simply accept that our electoral system elects members.

If we are talking party financing, then I am happy to look at the proportion of vote that a party gets, but if we are electing MPs we are electing MPs. We are electing MPs, real MPs who represent real constituencies, not MPs who come from party lists and pieces of paper and who are party hacks, but real MPs. That is what our system elects to this place now. I maintain that this is exactly what Canadians want to have in place for the next while.

[Supply, September 30th, 2003]

Mr. Speaker, I thank the hon. member for allowing me a response. I hope he will keep to himself while I answer his question. He did not want to listen to my last answer.

I accept that other mechanisms we use here in this country will look at proportional voting in the prior election; I do not have a problem with that. But I have already clearly stated why I believe first past the post serves Canada. Other countries are not walking away. Other countries may not be adopting the system. I do not think Canadians want to adopt the American system or the Australian or the Argentinian. I think we have a system that works real well now. I am saying, “If it's not broken, let's not fix it”.

[Supply, September 30th, 2003]

Mr. Speaker, the hon. member who moved the motion obviously wants to take over. Perhaps he would like to answer the question.

[Supply, September 30th, 2003]

Second, there is no difficulty at all with--

[Supply, September 30th, 2003]

Mr. Speaker, in relation to Australia I hope the hon. member will agree that it is only the Australian upper house that uses PR. The lower house is still elected just the way we are here. The lower house is usually the democratic house, if I can put it that way.

His list of democracies speaks for itself. I do not think there is any need for Canada to emulate Argentina or Serbia or Italy. I think Canadians believe we do just fine here.

[Supply, September 30th, 2003]

Mr. Speaker, the subject of debate today is one which has been before us previously and may well be before us again. It is an initiative proposed by the hon. member who moved the motion that Canadians look at proportional representation, or at least engage in a referendum considering the adoption of a proportional system of elections to bring members to the House of Commons.

Over my years here, I and I am sure most of my colleagues in the House, have had some introduction to proportional representation as an electoral mechanism. It is not used generally in this country. It is not used generally in our neighbour to the south. It is used in a new way in election to the legislatures in, I believe, Wales and Scotland in the United Kingdom. It is not used yet, and who knows, it may never be, in the mother of parliaments, at Westminster in the U.K. The system is used in differing ways in different countries around the world.

The reason people, institutions and academics put forward proportional representation as a mechanism for electing persons to assemblies and parliaments is that from a general philosophical point of view a proportional representation system provides a better mathematical reflection of parties and the views and ideas of parties based on a party system. It is not that the individuals who put forward these proposals think that our system is irrevocably broken. They generally are trying to make our system a little better. However, as I have looked at this over the years, I think we are served quite well by our present electoral system.

Those alleging that something is broken and has to be fixed may well do so. If something in our system is broken or something needs revision, updating or fine tuning, and there may be things that need updating, I am of the view that it is not our electoral system. It may be that the way we do things around the House of Commons needs to be updated. It may be that members of Parliament have to do things differently.

I maintain that there is nothing wrong with the way that we got here. Our system, sometimes called first past the post, is not only adequate, it has served us extremely well. For reasons I hope to review in my remarks here today, it serves us extremely well and I believe, better than any other system that might be proposed.

I do not look negatively on those who do propose it though. They are simply doing their jobs, thinking out loud. There are probably not too many university political science classes looking at these issues that do not think somewhat positively about a proportional representation system. It seems pretty mathematically fair.

In our system now, which as I said is sometimes called first past the post, there are winners and losers. Of course there are in any election. In the current system some people complain that the government in power in our Parliament, whichever party or coalition of parties that may be, from time to time can obtain the majority of seats in the House having received less than 50% of the popular vote in the country. That is mathematically possible; in fact, it is mathematically frequent. That is the current arrangement in the House of Commons. However, as I will point out, the system serves us very well in Canada.

The current system of electing members to the House puts the emphasis on members. Voters in a constituency elect a person, a member. For most elections that person is a member of a political party, but sometimes independents run. Party affiliation has proven to be fundamental in our Canadian democracy and in most democracies around the world, however, it is not the essential element. It is fundamental, but not the sole basis on which we elect representatives. In most constituencies, voters look at the person who seeks to hold office. Sometimes they look at the party, sometimes they look at the person, and sometimes they look at the leader of the party. However the emphasis, I repeat, is on the member.

Some may say that in the current system the party in power can have a majority in the House while holding less than 50% of the popular vote, and that may be true as an overall picture. It does not always mean that the party in government has managed to obtain more than its mathematically fair share of representation across the country. In our current electoral system it is completely possible for the governing party to obtain fewer seats in various parts of the country than is reflected either in the mathematical percentage of popular vote or in the seats obtained in the House from that region. A party could obtain 20% to 25% of the votes in a particular region of the country but end up with almost no seats. The flip side of that allows the House in the election of members to reflect the views of the country at the time of the election with the focal point being the election of the member and not necessarily his or her party.

The proportional representation system as I understand it involves bringing into the House of Commons after an election additional persons, not because they were elected by constituents, but based on lists put forward by the parties. If party A happens to elect 50 members of Parliament and also has 30% or 40% of the popular vote, it will also be able to appoint additional members from lists put forward by that party. That allows the completion of a mathematical equation, but it also essentially allows individuals who were not elected to come into the House.

Those individuals will have been appointed, and that is not something the House of Commons has ever really entertained with much relish. It has never happened. It sounds more like the unelected Senate. It is the concept of putting people in the House of Commons who have not been elected by constituents but rather are people who have been taken from lists provided by political parties. Canadians may like to do that, or they may not. I personally do not favour the process of bringing people into the House just because they were on a list. I personally like the process of election from a constituency.

Let me address the election of a member from a constituency. All of us in the House represent constituencies directly. We serve in the House as representatives of all those people. We also fulfill what has been called an ombudsman role.

If something is not working properly, if a constituent has some difficulty with the federal government, the member acts in the role of a Mr. Fix-it or Ms. Fix-it. That role of fixing things that are administratively broken or unfair falls to each one of us who is elected from a constituency.

If we were to adopt a proportional representation system, I suggest there would be a breakdown in that role simply because the persons chosen from the lists provided by the parties would not have been elected in a constituency. They would not have a connection to the street, to the constituency, to the neighbourhood, to the people. Their presence in the House would be as a result of a party pecking order that had placed them on a list, not because Canadians had chosen them to represent them in the House.

Members in the House may also question the fairness or equity of having other members in this House who did not have to carry out the role of ombudsman, who could simply operate freely without having to account to a constituency. That is what the currently proposed proportional representation system would offer us. That does not appeal to me. It may appeal to some others in the House and it may appeal to some Canadians, but it does not appeal to me.

I do not want to see a diminishment in the role of members, or at least an unfairness, inequity or discrepancy creep in to what we in this House have provided as a service to Canadians since the time of Confederation.

I will now move on to the major reason I do not subscribe to a proportional representation system. For simplicity and rather than tying my tongue up, I will refer to it as a PR system after this in my remarks.

It is really broken into two parts. The major reason has to do with the structural bias, the structural suitability of our current first past the post system for a federation like Canada. Most in here will agree that the first past the post system contains a slight bias in favour of enabling a party or a coalition of parties to form a majority in the House. There is a slight structural bias. As I said earlier, a majority government can be formed with less than 50% of the popular vote.

That bias allows for the creation of a majority government which, most people will agree, provides more political stability. Between elections Canadians usually look for that type of stability. Not all Canadians are in favour of the government that happens to be in power from time to time. Stability is a very special commodity that we look for in our political system. That bias in favour of being able to create a majority government is, I suggest, an asset for this country. It is sometimes described as the genius of the parliamentary system.

It is noteworthy that the parliamentary system has found its way all across the world. In the original parliamentary systems, the ones that were put into place prior to, let us say, 1900--I think Australia was founded in 1900. Its lower house is first past the post. I believe its Senate has a modified proportional representation mechanism. But the United Kingdom, Canada and the United States, the early democracies, very successful countries, have somehow managed to hobble on into the future with our first past the post system. That is testament to the genius of the system.

As for this particular structural bias of the first past the post system to allow a government majority and avoid splintering the representation in the House to detract from that political stability, I suggest it is an asset. That is not necessarily so, as I have said, in every political science class across the country. In political science classes they do not have to run the government or a country. They just get to talk politics. One of the great beauties of the university campus is precisely that. That is where we get a chance to think and to be intellectuals. In this place, we have real politics and we have a country to govern.

That was my description of the first part of that structural bias that I wanted to articulate. The second part pertains more to what I believe Canada needs. What does Canada need in an electoral system? I may bore everyone in here by restating what Canada is in real life on the world stage. We are a huge country of many regions, many different points of view, many cultures, many languages and many religions. Just the difference in regions is enough to create differences.

Every one of these regions of our country is quite capable of spinning out political thought and political ways of doing things. We are a federation of ten provinces and three territories, but we are much more than that as well. We are not just a collection of ten provinces; we are a collection of peoples. And we need a system of government that will bring us together, not one that will reflect the parts and pieces but one that will bring us together.

I would suggest that any federation as a system of government does not need or is less likely to need or to be served by a PR system and is more likely to need and want and be better served by a first past the post system, one that has the bias in favour of the formation of a majority government. That is why I think a PR system will not serve us well.

We need a system that is more likely to overcome all the regions, languages, cultures and religions that could pull us apart and could generate splinter parties, a lot of parties. We must keep in mind that in this country the taxpayer finances political parties. The taxpayer picks up a piece of the tab, so in a country where we are picking up a piece of the tab and we have regions and groups that are quite capable of generating splinter parties, we could end up with a mulligatawny soup.

Those are my remarks. I am very supportive of our current system. I do not think it is broken.