Derek Lee

[Sébastien's Law (Protecting the Public from Violent Young Offenders), May 3rd, 2010]

Mr. Speaker, most of us have difficulty with omnibus bills sometimes, because they do tend to have a lot of legislation buried in them. The thing about an omnibus bill is that there is a theme that brings all the pieces of proposed legislation together. In Bill C-9, the budget implementation bill, there is virtually no theme. With the potential sale of AECL and legislation about payment cards or credit cards, it is all over the map. There is no theme.

In terms of criminal law legislation, we have seen bills in the past here and in other jurisdictions that have a themed Criminal Code amendment, and I was referring to those.

My colleague makes a good point that, when we are dealing with youth criminal justice, it is a very visible separate component of our criminal justice system. We keep it separate. That is why I styled my remarks around the theme of intervention as opposed to retribution, accountability, deterrence, these types of issues.

I recall visiting a youth boot camp in the Ontario jurisdiction. It was a very successful operation that dealt with youth. It was well run and disciplined. The young men there earned points to get the chance to go home on weekends on a supervised home visit.

I did bump into one young man and I asked him where he was going after he was out of there. It was a very sad comment because he said he did not have any family so it did not matter whether he earned any points to go home on the weekend. He said he would probably go back to the pool hall.

What a sad situation that the intervention that was there, which seemed to be having some benefit, was going to come to an end. The intervention would end and that young man would go back to a pool hall in Toronto. He was not going to go back to school. He did not seem to have any appetite for that. He was about 17 years old. I was quite saddened that the intervention that was there was going to come to an end and he was going to end up back at the same place that probably got him into trouble in the first place.

I go back to my theme of quality intervention. The better the quality, the better the outcome and the better it is for our society.

[Sébastien's Law (protecting the public from violent young offenders), May 3rd, 2010]

Mr. Speaker, everyone knows what the Criminal Code is. It is straight, charter-based criminal justice.

Our Young Offenders Act and Youth Criminal Justice Act were designed to shape the hand of the societal intervention. The preamble we put in there is intended to show us why we are doing this, to shape the hand of the intervention so the outcome can be better than it would have been. We are looking for outcome. It is not the societal response. It is not the punishment. It is the outcome in relation to the life of the youth in question.

[Sébastien's Law (protecting the public from violent young offenders), May 3rd, 2010]

Mr. Speaker, we are debating another, another, amendment to the Youth Criminal Justice Act. I say that knowing that the act used to be referred to, at one point, as the Young Offenders Act. This is probably the fifth set of changes this Parliament has dealt with since the time when Parliament accepted that the old Juvenile Delinquents Act did not really suit where we were headed as a society.

It is quite fair to accept that, from time to time, it is necessary to fine-tune our legislation. That is essentially what we do here all the time for all of our laws and our public policy. Approximately five years ago, there was an inquiry in the province of Nova Scotia dealing with young offenders. That particular inquiry produced a very credible report that suggested that components of our Youth Criminal Justice Act were not up to par and that portions of it could use some minor amendments in the public interest.

Those areas dealt with the way we handled youth who, with 20/20 hindsight, were potentially violent and seriously violent offenders and were not really controllable by the kinds of routine orders and judicial intervention available under the act. I sat on the justice committee at the time and I recall pretty much around-the-table acceptance of those suggestions. Those suggestions for reform have now found their way into this bill.

In fairness, I should say that there have been a couple of other bills before Parliament that attempted to implement the same changes. We are finally getting around to it now. For those changes dealing with the really hard-to-handle procedural problems involving young offenders, I could not imagine there would be too much dissent.

Even the judge who led the inquiry in Nova Scotia said that these should be seen as minor amendments. There is no need to make a radical overhaul of the statute, but these amendments would suit the public interest in the sense that they would protect both the public and the young offender from potential serious harms in the period that follows the police intervention until the time when the youth is sentenced. That would be the interim period while the youth is being processed, while charges are being laid and during the trial.

I do not think he pointed out any problems with the act regarding the period after conviction and sentence. But he did request that these amendments look very clearly and honestly at the problem of youth who have adopted a potentially violent modus operandi and society needs protection from that.

In this particular bill, there is a whole lot more than just those recommended changes. Members should go to the title; this is not the first time I have spoken about this. On the front page, it says, “An Act to amend the Youth Criminal Justice Act”. There is nothing the matter with that, but then clause 1 says that this act may be cited as somebody’s law, protecting the public from violent young offenders.

That is a commercial. That is an Orwellian mantra. It is a distortion. It is an adulteration of what should be there in the first section. This is a bill that is there to make a minor but important amendment, not a very complex set of amendments, to the Youth Criminal Justice Act. I object to that type of title. When that kind of a title is in there, it actually ought to tell us something. The bill just might be torqued to do a little bit more than just a minor amendment to the Youth Criminal Justice Act. Anyway, we read through the bill and find it does attempt to make some significant changes.

I note that this is one of about half a dozen criminal law amendment bills, and I also ask the question: Why did the Conservatives not put all these criminal justice bills into one bill? We have done that lots of times before. We make several amendments to the Criminal Code, we put them in a bill, call it an omnibus Criminal Code amendment bill and the House deals with it. But no, the government has to do a separate bill for every category of change it can think of. That has to tell us something also.

So utterly telling is the contrast between this bill and the budget implementation bill, Bill C-9. Do members know how many bills that bill changes, how many statutes that bill amends? It seeks to amend 29 statutes in one bill, and yet when it came to making amendments to the Criminal Code, the government had to introduce a half dozen separate bills. I do not quite understand that. Maybe I am naive and maybe there is something going on here I do not see, but I will leave it to the voters to figure that one out.

When it comes to youth criminal justice, a term we should be dealing with is the concept of intervention. I have not heard that term a lot here, but it is so important, and in my view it is the most important concept. When a youth goes offside, breaks the law, and I am talking of a person who is between the low threshold and 17 years old, I prefer to regard our obligation as that of intervention. Now some Canadians would just like to treat that like a normal criminal act; we charge, we convict, we sentence, we deal with it. But we have learned in society that it is the absolute worst way to deal with young offenders. For a person in the sometimes turbulent, confused youth years, a lot of things happen.

I will admit that, when I was under 10 years old, I broke into a house, I as a little kid with some other kids. As great irony would have it, Mr. Speaker, you will not believe it, but the house I and the others broke into was the house of a Juvenile Delinquents Act judge. Is that not unbelievable? And I was the son of a policeman, to boot. At the time I really did not think I was breaking any laws. I actually did not know a lot about what I was doing. But the point is: What if they had taken all those youths who were all different ages and just put us all in jail? How would our lives have turned out? That would have been a bad story.

I refer colleagues to the Perry preschool project and the whole history of that project, which began about 1960 and went on for 25 years in the Chicago area. It measured outcomes between one group with which there was a huge intervention, in school and otherwise, and another group for which there was no intervention. The outcomes were like night and day. We have proven that intervention works and jailing does not. Even though it can be very expensive, the dollars we spend on intervention are infinitely better spent than any money we are going to have to spend later, after the fact, jailing and punishing. In addition, the youth who get through these turbulent years and make better choices rather than bad choices end up costing us zero and are productive citizens.

I am getting close to the end of my time for debate. I will pause here in the hope of being able to speak further at a later date.

[Questions Passed as Orders for Returns, April 30th, 2010]

With regard to bids submitted for the contract for the Integrated Relocation Program of Public Works and Government Services Canada in the years 2002, 2004 and 2009: (a) how many bids were submitted by qualified bidders and under what names; and (b) how many bids were submitted by all bidders, qualified or otherwise, and under what names?

[Keeping Canadians Safe (International Transfer of Offenders) Act, April 22nd, 2010]

Madam Speaker, the main theme in this debate is the increased bundle of discretion that is being offered statutorily to the minister involved. It is a distortion of the regime that has existed up to now, which has worked rather well. There is some concern in the House that the additional discretion is not needed. That is not to say that no amendments to this statute are needed, and we are going to make some amendments if this bill goes forward.

I think the view in the House would be that the discretion involved ought to be constrained better than it is now in these amendments. In many ways the discretion offered goes way too far.

[Keeping Canadians Safe (International Transfer of Offenders) Act, April 22nd, 2010]

Madam Speaker, some Canadians do not like the thought of Canadians returning to Canada when they have committed offences abroad, but the fact is that they will be coming back and, in theory, the day after they finish serving their sentence in whatever country.

For those who are not violent offenders but have broken the law, bringing them back a little early to serve their sentences here allows for transitioning. Our corrections system has some of the best transitioning and conditional release provisions in the world, and we do quite well at it statistically. It is not perfect but we do quite well at it.

Those really violent offenders will come back anyway. They are not prohibited from coming back to Canada. As soon as their sentences are up, in theory, they are back here on the next plane. I would rather have them come back to Canada before the expiry of their sentences so that we can get a handle on them, find out a bit more about them and get them into some programming if possible, some transitional, conditional or supervised release. That supervision would then assist in transitioning them out of their sentence and back on the street where, after the expiry of their sentence, they are entitled to be. That makes the whole system safer.

Whether they are non-violent offenders or violent offenders, there are good reasons for doing this and it has worked pretty well for the last 30 years.

My friend may be correct that the goal here is to reduce the need for the government to bring some of these people back for whatever reason. If they are public safety reasons, I wish the government could be real honest about that.

[Keeping Canadians Safe (International Transfer of Offenders) Act, April 22nd, 2010]

Madam Speaker, I did manage to get most of my remarks in but I might have been a little unclear on one thing, which is that for ever statute that comes forward, the Department of Justice, under the Department of Justice Act, is required to provide an opinion to the Privy Council that the proposed legislation is charter compliant. I am curious as heck to see how the Department of Justice handled this particular statute.

I have a sense from time to time that the Department of Justice may have lost its way over the last few years. It, of course, leads in developing legislation. I noted a case before the Supreme Court last week. The law on taxation of the federal government by municipalities has been clear for almost 150 years but somehow the Department of Justice lost that case. I have not read it yet but I am sure there is a good explanation in the case.

However, we need to focus a bit more on rule of law here. Law is the infrastructure and politics is the octane that runs this place but we need to keep our eyes on the components.

[Keeping Canadians Safe (International Transfer of Offenders) Act, April 22nd, 2010]

Mr. Speaker, I am pleased to join colleagues in debating Bill C-5, which is an amendment to the statute that governs the transfers of Canadian offenders outside Canada back into Canada and offenders in Canada who are not Canadian would be patriated to their own countries.

I debate this because I see some material difficulties with the in bill the way it is written. I do not want to prejudge the vote of the House, but should it go to committee for study, it is my hope that the remarks in the House will better inform the committee review of the bill.

There are three areas I want to address. The first is about the title of the bill. The second is about the degree to which the House may expand the ambit of discretion in the hands of, not the Governor-in-Council or not a tribunal, but one minister. The third is about charter compliance in relation to what is in the bill.

The first thing is the title. It is an act the amend the International Transfer of Offenders Act, but the government, for whatever purpose, has seen fit, in clause 1, to write the following, “This Act may be cited as the Keeping Canadians Safe (International Transfer of Offenders) Act”. I do not quite understand why the government would name it that. It could have named the bill, “making Canadians happy act”, or “making Canadians more contented”, or “making Canadians feel a little bit better”, or maybe “making Canadians like the Conservative Party of Canada a little better”.

If the title of the bill is to become an open-ended billboard for political rhetoric and advertising, then I think the House should put a stop to it. I have never seen this nonsense before.

If anybody is to put an end to it, it has to be the members in the House. I am pretty sure the Department of Justice did not decide to put a neon sign, billboard piece of advertising rhetoric in the title to a bill. It is actually bordering on the absurd. I have thought about it. This is a bit like the Orwellian Animal Farm thing that we could read about in fiction some years ago. If the government keeps repeating these little mantras, maybe people will start to believe it.

The first thing I think the House should do is strike the title of the bill, but our procedures do not allow us to do that at second reading. However, I would love to see a motion to do that, to at least strike out the political rhetoric and advertising in the title. I hope the committee, if it goes to committee, will strike this part of the title and state very firmly in a separate report that this type of playing, abusing, distorting, adulterating the clause 1 of a bill by throwing in a little political throwaway line is unacceptable to the House and it distorts our legislative practices here.

This is not the first bill where I have seen this, but it is the first bill where I have had a chance to get up and, in a material way, address it. It is unacceptable. Hopefully, if the bill comes back, we will not see this nonsense. The House should not be drawn into these silly, Orwellian, Animal Farm, political mantra insertions in our statutes.

Of course once we write it, it could be there forever. There it is, in all of our bills, “the making Canadians happy bill”, “the making Canadians content bill”, “the oh what a wonderful world it is bill”, “the do not forget to vote for us in the next-election bill”. This is silly, dumb, distorted, political thinking. It certainly is not part of the legislative arts. I really hope the committee that studies the bill will look at that.

Let us move on to something a little more substantial, and it is the issue of discretion.

A number of members have spoken about it and it is clear, on the face of it, that one of the purposes of the bill is to broaden the discretion of the minister in making decisions on offender transfers. Most of the changes take place with reference to Canadian offenders abroad who have applied to be repatriated to Canada. However, clause 3 of the bill applies to offenders in Canada being removed, on their own application, from Canada. There is an expansion even there because currently the wording is that the minister “must” take certain things into consideration. The wording being proposed here is the minister “may” take into consideration a certain number of considerations. That is just on the circumstance of offenders who are not Canadian, who are in Canada and as part of an application process involving their country have applied to be removed from Canada to serve the balance of their sentence in their country of origin or citizenship.

Let us go back to the issue of discretion in relation to Canadians abroad. As I look at the bill, it is pretty clear that the discretion made available by the House, because we are legislating this, to the minister, from a “must”, as in, “the minister must take a look at this consideration”, is moved to the word “may”, as in, “the minister may”. That means the minister does not have to take into consideration the items that are preceded by the word “may”.

In addition, we have the insertion of the words “in the minister's opinion”, which basically says that what really matters is the minister's opinion, one person's opinion on that consideration.

At the beginning, the bill refers to the goal of enhancing public safety. Nobody could object to that, but it is also a fact that the Sentencing Act, the Corrections and Conditional Release Act and the Criminal Code all refer to and incorporate public safety as either the number one or a leading public policy objective in all of this. How could it be otherwise?

Having mentioned the word “may” and the insertion of “the minister's opinion”, we also have at the end, subsection (l), unbelievably having listed 11 separate factors and a number of sub-factors. These are considerations that the minister may take into consideration and, in relation to which, it is the minister's opinion that governs. Having listed all of those carefully, itemized with precision, the government now inserts a clause that says, “Any other factor that the Minister considers relevant”. Why do we not just drop all of the considerations and insert subsection (l) so the minister can simply, on his or her own opinion, “Any other factor that the Minister considers relevant”.

What a total, unmitigated abandonment of rule of law is this? If we pass this, why bother giving the minister a list of considerations and matters to take into consideration if at the end of it all we can simply say “any other factor that the minister considers relevant?” It is not whether it is relevant or not, it is whether the minister considers it to be relevant. Therefore, should there ever be case of someone, God forbid, second-guessing the decision of the minister, and we would never want to do that around here but maybe in other places people might, the minister can simply respond by saying that it is none of our business because the statute says that he or she can take into consideration any other factor that he or she considers relevant, for example, if a person has bad eyesight, or good eyesight, or is too tall the prison beds.

We will not bring back a seven-footer because we will have to build a special bed for him. Is that a relevant consideration? It is only in the mind of the minister that it matters. If the minister thinks that is a factor the minister considers relevant, then it counts. That is what we have been asked to pass and legislate. This is wrong. This is a default. This is an abandonment by the House of the issues that we consider relevant because we have already created the main list.

There are other considerations. Paragraph (g) states, “The offender's health”. What does that mean? The minister may take into consideration the offender's health. Does that mean good health or poor health or some aspect of health? Will the minister look at the person's DNA? A lot of DNA is being recorded and profiled now. It is recorded for all serious offenders in our country and in many other jurisdictions around the world. The DNA of the offender is taken and DNA profiles are fully capable, under proper analysis, of revealing health traits and propensities to certain bad health. Do we want the minister to have the total discretion to take into account that offender's health? In this case, we are talking about a Canadian offender who is outside Canada who has applied to come back and serve the balance of a sentence here in Canada.

There should be some parameters put on this. However, if the House were to go ahead and adopt the whole list, including item (l), any other factor the minister considers relevant, it really does not matter then. The minister can take into consideration the health, whether the offender has or does not have hair, height, weight, where he or she was born, and any other factor the minister thinks is relevant.

I hope in the end that these items will be dropped from the bill. I am pleading with colleagues in the House and the committee to seriously consider dropping some of these provisions or circumscribing them. However, at the very least, if Parliament does turn over to the minister additional discretion, whether it includes these things or not, I hope there can be a provision inserted in the bill that requires the minister to put these considerations in writing and to make them available to the offender whose application is being dealt with. It seems to be fair that these considerations, if relied on by the minister, are put in writing. Let us keep this in mind. There is no built-in review. It looks like the minister's say on this is final.

I mentioned the offender's health. Subparagraph (i) deals with whether the offender has accepted responsibility for the offence for which he or she was incarcerated. In the normal course, that sounds reasonable, but what about the case of offenders who say that they were never guilty and that it was a false conviction? Do we think there were ever any false convictions out there? In fact, we know there have been too many, which we all feel badly about. The ones we hear about are the convictions dealing with homicides. In those cases, the offenders are normally incarcerated for much longer sentences, for 10 to 20 years or life sentences. In those cases, when the offender, who has been improperly convicted, finally gets a chance to prove it and get exonerated, those are high profile cases because the offender has usually served quite a few years.

I do not have to list of those cases. However, those who have been exonerated should be able to go on with their lives without being mentioned in the parliamentary record.

What about all the other cases of people who have been falsely convicted of lesser offences where the sentences have been two, three, four or five years and they have been incarcerated in a foreign jurisdiction, even though they were plainly the wrong people? This section seems to be saying that in order for the minister to bring the person back, the person needs to have accepted responsibility for the offence for which he or she were convicted, including acknowledging the harm done to the victims and the community. How does that section deal with the matter of a false conviction? It does not and it should.

I will stop my review of the individual sections, but there is one more item I want to mention. Subparagraph (d) states:

whether, in the Minister’s opinion, the offender left or remained outside Canada with the intention of abandoning Canada as their place of permanent residence;

That is not a new provision, but the part that makes it “in the Minister's opinion” involves the extension of discretion, which I am concerned about. The reason that it is important in this case is that if there is a Canadian abroad, he or she has, under our charter, the right to return to Canada.

I am concerned here, legally, about this House legislating a ministerial opinion that would or could obstruct a charter right of a Canadian offender abroad to come back to Canada. This has charter implications and constitutional legality implications. I do not know whether that was noted.

I will now deal with the charter issue. In my view, these provisions are much too vague. They impose a degree of arbitrariness. Under our Constitution, we are not supposed to be subject to arbitrary measures. We have legal rights to life, liberty and the security of the person. We have the right not to be arbitrarily detained or imprisoned, which is applicable here depending on what is meant by imprisoned or detained. If we have the right under our charter not to be arbitrarily imprisoned or detained, which is specifically mentioned in the charter, then we do not have the right to write a statute that takes away the right not to be arbitrarily detained.

The allowance of the minister of these arbitrary discretionary rules removes that charter right. I would love to see the Department of Justice opinion that says that this provision and all these provisions are charter compliant.

The real issue here is whether Parliament will abandon the set of rules that we have had established for many years for offenders in favour of virtually a totally arbitrary decision in the hands of one minister of the government of the day, and not just of an apparent and alleged charter problem but real, material and incipient charter issues on the face of it.

[Keeping Canadians Safe (International Transfer of Offenders) Act, April 21st, 2010]

Madam Speaker, I am not sure whether the hon. member's speech was his speech or whether it was the propagandists on the other side of the wall. However, I will assume that he understands the bill fully and not just what has been prepared for him here. I know he sits on one of the committees that deals with these things.

He mentioned some sections that he agreed with here in the amendments. There are two things he did not mention and I am wondering what he thinks. First, the criterion under subparagraph (g) simply says, “the offender's health”. Does that mean good health, bad health or indeterminate health? What kind of health does it mean? What kind of a consideration is that when it does not really have any meaning?

Second, in subparagraph (l), at the very end of all of the considerations, the minister has “any other factor that the Minister considers relevant”. Why bother having any factors at all if at the end of it the minister can take into consideration any factor the minister considers relevant? How is that even charter compliant when there are no boundaries put on these considerations?

[Canada-Colombia Free Trade Agreement Implementation Act, April 16th, 2010]

Mr. Speaker, I know the government has agreed to support an amendment to this legislation at committee but as I look at it I just have a sense that those types of amendments just might be beyond the scope of the bill at committee. We might run into things like challenges to the chair and it might not be a straight line.

I am wondering if the government has actually scoped out how it intends to facilitate the amendment of this nature to the bill and whether it has considered a possible motion of instruction to the committee that would follow adoption of the bill at second reading, just to ensure that those amendments can happen.