Irwin Cotler

[Not Criminally Responsible Reform Act, March 1st, 2013]

Mr. Speaker, I made specific reference to the fact that it has been demonstrated that the review board does have the necessary expertise. Devolving that decision-making authority back to criminal courts that lack the requisite expertise would prejudice the very objectives this legislation purports to have, namely the protection of public safety, a decrease in the numbers of victims and in particular the whole question of the rehabilitation of the mentally disordered person through treatment and evaluation, which the Supreme Court recommended and which the review board can implement, but for which the criminal courts may not have the expertise.

[Not Criminally Responsible Reform Act, March 1st, 2013]

Mr. Speaker, I would like to thank the member for his question.

I listened to the member for Gatineau and, in general, I concur with what she said.

I would also like to quote the Supreme Court of Canada in its decision about the principles in this issue. The ruling states:

Treatment, not incarceration, is necessary to stabilize the mental condition of a dangerous NCR accused and reduce the threat to public safety created by that condition.

This is taken from the 1999 ruling in Winko v. British Columbia. The court also said:

By creating an assessment-treatment alternative for the mentally ill offender to supplant the traditional criminal law conviction-acquittal dichotomy, Parliament has signalled that the NCR accused is to be treated with the utmost dignity and afforded the utmost liberty compatible with his or her situation. The NCR accused is not to be punished. Nor is the NCR accused to languish in custody...as was once the case.

We must remember that the accused who is not criminally responsible has not been found guilty or acquitted of any crime. These people have been declared not criminally responsible, and therefore it is wrong to say that they are criminals. It is an insult and harmful. That is the basis for my remarks.

We should not pass legislation that clouds this important distinction and the restrictions that the Supreme Court of Canada points out in its ruling on the issue.

[Not Criminally Responsible Reform Act, March 1st, 2013]

Mr. Speaker, I would agree. The whole approach of this legislation regrettably fits a pattern whereby one addresses the issue through the lens of punishment rather than through the lens of prevention. Since we are dealing, in particular, with the issue of the mentally disordered, this becomes crucial in terms of approaches with regard to prevention.

Again, I regret that when I submitted amendments on Bill C-10 that would have addressed the approach to the mentally ill through treatment rather than incarceration and through prevention rather than punishment, they were rejected by the government, although they were designed for the sole purpose of simply improving that which the government was ostensibly concerned with in Bill C-10, and that was the promotion and protection of public safety.

Through prevention we would, in fact, end up protecting public safety, ensuring that there are fewer victims, better treating offenders with respect to their reintegration into society, and treating those, particularly in the NCR regime, who are not regarded as offenders and have not been deemed criminally responsible with the appropriate approach.

[Not Criminally Responsible Reform Act, March 1st, 2013]

Mr. Speaker, first off, I would like to say that I have not decided that we will oppose the bill. What I said is that, as it stands, the bill is not evidence-based.

We are currently quite troubled by the bill and we intend to propose amendments in committee. They may deal with victims' rights, for instance. As I said in my speech, we support some of the measures in the bill that deal with victim protection. That said, we will propose amendments in order to strengthen the protection of victims and the public.

[Not Criminally Responsible Reform Act, March 1st, 2013]

Mr. Speaker, I rise to address Bill C-54, the not criminally responsible reform act, which would change how the Canadian justice system deals with accused found not criminally responsible, or NCR, on account of mental disorder.

It may seem like déjà vu for some that I am speaking again on this issue. As minister of justice and attorney general of Canada, I stood in this place to introduce the legislation that reformed this system, legislation, I might add, that passed with the support of all parties in 2005 and that has stood the test for the last eight years and more.

Throughout that debate, and the discussion thus far on Bill C-54, I have come to appreciate that members of the House have a clear compassion and concern for all innocent victims of violence and their loved ones, that we all seek to protect public safety, and that we agree on the need to support victims and victims families. Guaranteeing their well-being, as I said on the occasion of the introduction of my legislation regarding reforms to the mental disorder regime in 2005, is of primary importance in our justice system. It is precisely for that reason, as minister of justice, that I enacted measures allowing victims to provide impact statements at review board hearings for NCR accused. We should not think that the matters are being established or initiated for the first time now.

I was proud of the legislation that we introduced on NCR accused because it adopted an evidence-based approach and incorporated the guidance of the Supreme Court of Canada, the expertise of justice and health professionals and reports of standing committees of the House on this matter. Regrettably, the same cannot be said of the bill before us. In the matter of Bill C-54, the government's approach and rhetoric appear to be grounded more in fear and stigma than in the facts and evidence.

I will begin my remarks, therefore, with an overview of the available data about NCR accused. I will then share my specific concerns regarding this legislation while suggesting alternative measures that would likely prove more effective at preventing violence by people with mental disorders and hence better protect public safety, let alone having less victims. Finally, I will discuss how the bill fits a pattern of Conservative justice legislation that focuses excessively on the addition of punitive measures to the Criminal Code, on a punitive rather than preventive perspective.

Let me begin by reminding us all of the scope of the bill. NCR accused are neither found guilty nor innocent.

As the Supreme Court explains, this regime “supplements the traditional guilt-innocence dichotomy of the criminal law with a new alternative for NCR accused--an alternative of...assessment to determine whether the person poses a continuing threat to society coupled with an emphasis on providing opportunities to receive appropriate treatment.”

NCR accused account for less than 1% of accused persons annually. In evaluating the NCR regime and determining whether reform is needed, it is important to keep these facts in mind, yet on the day the bill was tabled, the former Parliamentary Secretary to the Minister of Justice and currently the Associate Minister of National Defence appeared on CBC and said with respect to the recidivism rate of NCR accused, “I'm not aware that there are any particular statistics available on that. I'm not sure that this is what it's all about.”

This is a particularly puzzling statement, given that the Supreme Court, in the case from which I just cited, Winko v. British Columbia, found that “Research shows that NCR accused are no more likely than their convicted counterparts to commit any offence, let alone a violent offence, upon release”. While that particular case is from 1999, more recent statistics are available, but they are not favourable to the government's case.

That statement by the parliamentary secretary was in essence an admission that the government has eschewed empirical evidence in the drafting of the bill, which aims expressly to make it more difficult to release NCR accused in the name of public safety, yet if legislation is to protect the public against a particular threat, information regarding the extent of that threat is fundamental. Otherwise we are legislating based on myth, gut instinct and stereotyping, which the NCR regime sought specifically to guard against with respect to the mentally ill.

The data to which we do not have access—and I have submitted an order paper question in this regard that I hope will receive a full response in the near future—indicate that very few mentally ill people commit violent acts, even fewer are found not criminally responsible and only a minuscule percentage of those found to be NCR reoffend after treatment.

To begin with, according to researchers from McGill University and Université du Québec à Trois-Rivières, 90% of people with mental illness are non-violent. Moreover, a report prepared for the Department of Justice shows that in 2004, the last year studied, only 0.18% of all criminal cases resulted in a finding that the accused was either NCR or unfit to stand trial for reasons of mental incapacity. Finally, a Canadian study from 2003 puts the recidivism rate for people who have been found NCR, treated and released at just 7.5%. By contrast, those who are not NCR and have served in federal prisons have a reconviction rate of over 40%.

I realize I am using many numbers here, but I do not want there to be any confusion. This bill is dealing with less than 10% of a population that is already less than 1% of all those criminally accused in Canada. One would think that for all the hype over this legislation that it would be targeting a large group of Canadians, not less than one-tenth of a percent.

There is no doubt that the rarity of the occurrence is of little importance to those who are victimized and the horror that they have experienced, and certain efforts to refine our NCR regime may well be worthwhile. In fact, Bill C-54 does contain some measures that are reasonable and worthy of support, such as keeping victims families better informed and prohibiting perpetrators from contacting victims after their release. However the government's overstatement of the problem and the heavy-handed response to it risks doing more harm than good.

This brings me to the second part of my remarks, in which I will discuss specific concerns about Bill C-54 and particular aspects of the bill that may have unintended negative consequences. To begin with, Bill C-54 would allow certain NCR accused to be designated high-risk, not by mental health experts, but by criminal courts. This designation would devolve subsequent decision-making authority regarding the accused from specialized review boards to criminal courts, once again despite the fact that general criminal courts lack the requisite expertise to make determinations about the risks posed by a person with mental illness.

The government is proposing this change without offering any evidence that review boards have failed to protect the public from a dangerous NCR accused. Indeed, under the current system, review boards do not release NCR accused who continue to pose a threat, something that appears to be ignored by the government in its deliberations thus far.

The high-risk designation, combined with tripling the time period between reviews from one year to three, may cause NCR inmates to remain in custody long after successful treatment. Such an outcome would be unacceptable, given that, as the Supreme Court has stressed, NCR accused have not been convicted of a crime. Indeed, as the court has stated, “the NCR accused is to be treated with the utmost dignity and afforded the utmost liberty compatible with his or her situation. The NCR accused is not to be punished, nor is the NCR accused to languish in custody...”.

Accordingly, Bill C-54 could lead to charter claims with respect to the section 7 right to life, liberty and security of person; the section 9 guarantee that everyone has the right to not be arbitrarily detained or imprisoned; and we could see section 15 challenges, as there is prohibition against discrimination on the basis of mental disability. Yet again, the government is seeking to enact legislation that will invite protracted, expensive and avoidable constitutional litigation. May I add parenthetically that, ever the optimist, I await the minister's report of charter inconsistency pursuant to section 4.1 of the Department of Justice Act.

Beyond the litigation risk, detaining more NCR accused for longer periods of time gives rise to the very practical problem of where these individuals will reside while in treatment. For this reason, I have asked the government for details about the capacity of the mental health institutions in which NCR accused are placed, and about any plans to increase that capacity, as well as any analysis that has been performed on Bill C-54's potential consequences in this regard.

It is by no means clear that our system is at present capable of dealing with greater numbers of NCR accused who are institutionalized for longer periods of time, and we risk complicating their recovery by straining the resources of the institutions and the individuals who are treated. That potential strain and resulting decrease in the effectiveness of such institutions, combined with the possibility that NCR accused could be detained for years even after successful treatment, might mean that mentally ill accused will be less likely to plead NCR as a result of this bill.

We would therefore find ourselves with even more mentally ill people in our prison system.

I am sure that I do not have to remind members of the tragic consequences of housing people with mental disorders in prison rather than in medical facilities. There are consequences for the inmates, as was demonstrated by the heart-wrenching videos of Ashley Smith, and there are consequences for public safety, which the government says is the primary concern that underpins the bill.

When mentally ill people are returned untreated into society after servicing a prison sentence, they pose a far greater danger than NCR accused who have been treated by medical professionals and evaluated by experts. For this reason, I introduced an amendment to last year's omnibus crime bill that would have allowed offenders to receive mental health treatment prior to incarceration, as is already done in cases of drug addiction. Regrettably, the Conservatives rejected this amendment.

Yet the best way of minimizing the potential that someone with a mental illness will commit a violent act, and therefore the best way of protecting the public, which appears to be the objective, as stated by the government, of this legislation, is to ensure effective treatment for the mentally ill.

This brings me to the next section of my remarks, in which I will discuss ways of minimizing the risk of violence by the mentally ill without resorting to punitive, counterproductive and constitutionally suspect measures, which underpin this legislation.

Parliament must encourage and facilitate timely and effective treatment, not only for NCR accused but especially for people in the early stages of mental illness whose conditions can be treated effectively. Indeed, according to the Schizophrenia Society of Canada, the key is early identification, intervention and treatment. To that end, we could train people who work with youth to recognize the initial symptoms of psychosis, since many psychoses develop in adolescence. We could help expand the reach of first episode psychosis clinics, institutions specifically designed to help young patients and their families deal with mental illness in its early stages.

Sadly, however, too many people wait years before receiving treatment, sometimes because their symptoms go unrecognized, and often because they fear the stigma associated with mental disease. It is therefore vital for parliamentarians to set the example by combating that stigma through our words and deeds.

Earlier this month, the members for Toronto Centre and Oak Ridges—Markham encouraged Canadians to openly discuss mental illness, emphasizing that there is no shame in having a mental disease and that recovery is possible. This is the attitude that must underpin our approach to all matters of mental health, including evaluation and refinement of the NCR regime.

However, through its rhetoric and approach to Bill C-54, the government has cast NCR accused as irredeemably violent and has contributed to the impression that Canadians have much to fear from the mentally ill. By overstating the problem of violence by people with mental illness and by understating or ignoring the potential effectiveness of treatment, the government adds to the stigmatization that so many Canadians are working so hard to undo.

As the bill goes forward, I call upon members to engage in the legitimate debate about the particulars of our NCR regime without ceding to stigma and stereotype.

I will use the remainder of my time to take a step back and view the legislation before us as it fits into the overall Conservative justice agenda.

With Bill C-54, the government would continue a pattern of focusing almost exclusively on criminal punishment, behaving as though incarceration is the only tool at the justice minister's disposal and criminal law the only legal domain over which Parliament exercises authority.

Given the rhetoric about the necessity of such reforms, one could be forgiven for mistakenly assuming that Canada is overrun with dangerous criminals and violent psychopaths terrorizing our country unimpeded. The truth of the matter is that the government's rather myopic focus on criminal law and its overemphasis on punishment, as opposed to prevention and rehabilitation, not only undermines its own efforts to promote public safety but prejudices the many other aspects of the justice agenda that are being overlooked.

For example, legal aid is woefully underfunded in this country, and the government has yet to commit to a comprehensive and sustainable civil as well as criminal legal aid program. Moreover, when it comes to judicial appointments, diversity on the bench is seemingly not a priority. Indeed, the only statistics the federal government keeps with respect to such appointments is in regard to gender, ignoring the diversity imperative that the judiciary reflect the populace, with representatives from different ethnic and religious groups.

Canada has also missed the opportunity to use the 30th anniversary of the charter to share our significant and storied legal expertise with judiciaries in developing countries. The government marked this anniversary only by releasing factually questionable press releases that seemed to highlight the Bill of Rights, which, ironically, Bill C-54 may also infringe. Instead, the government should have celebrated what legal scholars around the world have lauded as a landmark document and should have committed to public legal education, domestic law reform and international law-building.

The government could also recommit to wrongful conviction review, increase funding for the war crimes and crimes against humanity program or introduce legislation, oft promised, to allow random roadside breath testing.

I realize it may seem as though I have strayed somewhat from the subject before us, but perhaps it bears pointing out to the government the reality that more Canadians will die at the hands of drunk drivers annually than will die at the hands of NCR accused. Where is the legislation for those victims? Where is the focus on what is a criminal justice issue, where the government has real preventive powers? Bill C-54 demonstrates clearly the government's failure to prioritize and to consider the evidence before it.

This is but one example. In the aftermath of the Idle No More movement, which may have temporarily quieted down but has by no means disappeared—nor should it—now would be the ideal time for the government to commit to an aboriginal justice strategy, ensuring that indigenous legal traditions have their proper place before our courts.

There are also changes needed in the areas of statutory interpretation, alternative dispute resolution, consolidation of statutes, restorative justice and treaty reform, among many others, yet the government persists with a justice agenda limited almost entirely to criminal law, using as justification the odd high-profile case as opposed to empirical data. The bill before us today fits this unfortunate pattern.

As I mentioned, I have submitted an order paper question asking for evidence that would demonstrate the need for a bill like this one. I am open to any possibility that the government will table statistics and analysis that does just that. However, for the moment, the available research indicates the opposite, suggesting that recidivism rates are low, that review boards are thorough, and indeed, that mental illnesses are treatable and ought to be treated as a means of preventing crime.

I have no trouble understanding the fear and frustration many Canadians feel when certain NCR accused are returned to society, and I appreciate the horror victims have felt in this regard and the trauma that has thereby been experienced. However, we will never protect the public by letting fear outweigh facts as a basis for legislation or by having a punitive approach overtake the need for prevention.

[Human Rights, February 28th, 2013]

Mr. Speaker, on Tuesday, our Subcommittee on International Human Rights received Tibetan prime minister-in-exile, Dr. Lobsang Sangay, who provided compelling testimony on the ongoing repression and persecution of Tibetans by the Chinese government.

Dr. Sangay spoke with great sadness of the 107 Tibetans since 2009 who have expressed the ultimate cry of protest through self-immolation, some just days ago, which we ignore both at their peril and our own, to protect against the occupation and environmental degradation of their lands; against arbitrary detention and forced disappearance; and against marginalization, cultural suppression and the denial of religious freedom.

Tibetans value democracy, freedom and respect for the rule of law, while subscribing to the principle of non-violence in their pursuit of genuine autonomy pursuant to the Chinese constitution.

Let us all join our voices with Dr. Sangay in calling on Canada to press China to dialogue with the Tibetan administration, to permit Canadian representatives to visit Tibet and to work closely with the U.S., EU and international partners to end the persecution and pain of Tibetans.

[Canadian Human Rights Act, February 27th, 2013]

Mr. Speaker, I rise today to address amendments to Bill C-279, An Act to amend the Canadian Human Rights Act and the Criminal Code (gender identity and gender expression) to protect transgender Canadians. In its original form, it did this by adding “gender identity” and “gender expression” to both statutes. As I stated the last time the bill was in the House, I support this important effort, which will have not only symbolic but substantive and practical effects, to provide human rights protections to groups that, for example, the Ontario Human Rights Commission has characterized as being as “disadvantaged and disenfranchised” as any in our society today.

We are presented now with the unusual yet welcome opportunity to reconsider amendments to Bill C-279 that were raised at committee. These amendments, which remove “gender expression” and add an agreed upon definition of “gender identity”, were the product of a compromise solution, agreed to to maintain the support of the 15 Conservatives who joined with the opposition and voted for the bill at second reading. While I had hoped that both “gender identity” and “gender expression” would remain included in the bill, I appreciate the need for compromise in order to make progress on this critical issue. On that note, I would like to commend the sponsor of this legislation, the hon. member for Esquimalt—Juan de Fuca, for the spirit of co-operation he has maintained throughout this process.

With respect to the amendments that add a definition of gender identity, I welcome the fact that the chosen definition makes explicit reference to the internationally recognized Yogyakarta Principles. While these principles are not themselves binding international law, they were developed by some of the world's foremost experts on international human rights law and are intended to serve as an interpretive aid to human rights treaties. As an international law scholar myself, I am always pleased to see us referencing elements of internationally recognized principles in our own domestic legislation.

As I mentioned with respect to the exclusion of “gender expression”, it was initially my preference that both terms remain in the bill. Again, I am cognizant of the possibility that even in the absence of “gender expression”, the term “gender identity” might, through case law and through an appreciation of travaux préparatoires, eventually come to encompass part or all that would have been protected by the former.

All things considered, the amendments in question today are reasonable given that Parliament would still be taking a significant step forward with respect to protecting the rights of transgendered Canadians. As of now, these individuals can only exercise their rights under the Canadian Human Rights Act by advancing a claim under the prohibited grounds of sex and/or disability, as the parliamentary secretary himself acknowledged. To be clear, tribunals do hear the cases of transgendered Canadians, but such claims are complex and costly and rely on grounds, such as in the case of disability, that may themselves be highly offensive to the claimants themselves.

Some might ask why this is necessary legislation if transgendered individuals already benefit from such protections, which is basically the query and complaint put forward by the parliamentary secretary. Besides the symbolic value of recognizing this group in statute, Bill C-279 produces three substantive and practical effects of note. First, the Canadian Human Rights Commission would begin keeping statistics on incidents of discrimination targeting transgendered individuals. Second, the commission would begin raising awareness of transgender issues in its communications. Third, public officials would begin receiving briefings and training on the matter. This is, of course, in addition to the most important change offered by the bill, the offer of a clear and explicit human rights recourse to transgendered Canadians, not only in that it provides an expressed protection for transgendered people but in that it provides an effective remedy. This is something that cannot be marginalized or ignored.

There is precedent for the use of the term “gender identity” in Canadian, provincial as well as international contexts, notably the United Nations declaration on sexual orientation and gender identity, which Canada signed in 2008 and what I mentioned earlier, the internationally recognized Yogyakarta Principles.

In a word, I believe that this legislation would better ensure that transgendered Canadians enjoy the same equality of opportunity and freedom from discrimination as all other Canadians, as the member for Esquimalt—Juan de Fuca has so aptly affirmed and demonstrated in his remarks and in his work throughout this process.

However, it bears pointing out that we are in this rare situation today of reconsidering amendments because Conservatives on the justice committee engaged in a concerted and regrettable effort to thwart debate at the clause-by-clause stage. Indeed, the intention was clearly either to obfuscate the subject and spirit of the bill or, if nothing else, to torpedo the compromise arranged by the mover.

To start, they came with their own amendments, including a handful that only reinforced the status quo formula of “sex” and “disability”. Then there was a frivolous amendment exempting official Canadian sports authorities from the provisions of the bill, as if to contain some fictional mass of men trying to compete in women's sports, and vice versa. Finally, there was an out-of-context amendment that sought to ensure that no part of the Canadian Human Rights Act could infringe upon the rights of aboriginal peoples. While I firmly believe that we should only enact legislation that is mindful of the rights of Canada's aboriginal peoples, I found there was no reason to codify this specific protection into the act, as the charter supersedes any statutory act, which is clearly set forth in section 52 of the Constitution Act. It appeared that this, too, was a diversionary item.

Despite the tactics of diversion and delay, the compromise could still have been implemented at committee. With the support of one of the 15 Conservatives who voted for the bill at second reading, whom we should credit for open-mindedness, the committee accepted the amendment we are reconsidering today to remove “gender expression”, rendering several other Conservative alternatives inadmissible. Unfortunately, this procedural oversight by the Conservatives who were opposed to the bill spurred them to engage in a filibuster, behaviour which the Speaker has obviously himself acknowledged, given his decision today. Hopefully, we can now conclude the amendment process with an honest debate on the merits.

I would like to once again remind members of what is at stake with regard to this bill. To quote Mr. Justice La Forest of the Supreme Court of Canada at the time, “gender identity” must be included as a protected ground in the Canadian Human Rights Act because, “To leave the law as it stands would fail to acknowledge the situation of transgendered individuals and allow the issues to remain invisible”. We should also not disregard the history associated with this legislation, which has been introduced seven times since 2005. It was most notably passed by the House in early 2011, only to die on the Senate floor following the dissolution of Parliament that same year.

Today I urge my colleagues to not let this be another failed attempt at establishing equality and fairness for transgendered Canadians. The time to act is now.

[Citizenship Act, February 15th, 2013]

Mr. Speaker, I am pleased to rise in this debate on Bill C-425, an act to amend the Citizenship Act.

This private member's bill, at present, makes two changes to the citizenship process. First, it reduces the time a permanent resident must wait for citizenship if he or she completes basic training and has signed a minimum three-year contract with the Canadian armed forces. I would just note here that if this were the entire bill, I think it might well be passed by unanimous consent and we would not be having this debate today. I wholeheartedly support this provision.

The second element of the legislation provides that a person is deemed to have made an application for renunciation of their Canadian citizenship or is deemed to have withdrawn their application for Canadian citizenship if they engage in an act of war against the Canadian armed forces.

What complicates and indeed invites today's debate are the public statements by the Minister of Citizenship and Immigration that he seeks to modify the bill to revoke the citizenship of those who have engaged in acts of terror. Regrettably, we do not have his legislative amendments before us in the House. We do not know the exact wording he proposes. This may make all the difference, not only from a policy standpoint but from a legal and constitutional perspective as well.

The minister has argued that the power to revoke citizenship in such cases is a necessary one. He is quoted in La Presse this morning.

The amendments that I suggested will finally make it possible for Canada to harmonize its approach with those of other liberal democracies and will strengthen the value of Canadian citizenship. This will send a clear message that Canadian citizenship has real meaning and is not just a pass that violent terrorists can use with impunity.

The rhetoric in this statement certainly resonates and appears compelling on its face. Indeed, a commentator on this point, Mr. Ibbitson from the Globe and Mail, said something to the effect that if nothing else, this is good politics, and the immigration and citizenship minister is certainly a good politician.

However, the Minister of Citizenship and Immigration has been in this role since October 2008. He has, since then, introduced seven immigration acts, none of which have called for such a provision. Questions arise. Why now? Why this bill? Why in this way?

What Canadians may not know, though the issue is drawing more attention of late, is that a key difference between a private member's bill, such as that which is before us, and a government bill, such as would be the case if the minister were to introduce stand-alone legislation in this regard, is that government bills require the constitutional approval of the Minister of Justice pursuant to the Department of Justice Act.

In other words, by introducing such items through this private member's route, one circumvents the long-standing process by which legislative proposals are vetted for compliance with Canada's Constitution, including an assessment by the Department of Justice for litigation risk. This, of course, invites the question of whether there is an issue here of constitutional concern. As well, is there a related litigation risk?

Simply put, while we have a process allowing for the revocation of citizenship, as per section 10 of the Citizenship Act, in cases where a person obtains citizenship, for example, through false representation, fraud or knowingly concealing material circumstances, we do not have other ways of revoking citizenship at present. This new proposal, by way of a private member's bill, raises serious constitutional concerns given, inter alia, the Charter's guarantees in sections 6, 7 and 15, particularly where it engages matters of national or ethnic origin, or potentially the recognized analogous ground of citizenship.

Moreover, there are concerns with respect to the Canadian Bill of Rights, which reads in part, “no law of Canada shall be construed or applied so as to...authorize or effect the arbitrary detention, imprisonment or exile of any person”. The Bill of Rights also prohibits an act that would “deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations”. I should note, however, that there is a notwithstanding process in that regard.

At its core Bill C-425, and this is the key point, goes to the heart of the question of citizenship in Canada, a concept that is actually quite fluid and flexible, perhaps more than most Canadians think, with attending constitutional concerns.

Indeed, it remains unclear under what circumstances the revocation of formal citizenship, as opposed to the denial of an application for citizenship by a permanent resident, would implicate charter considerations. It is for this reason that rigorous debate by the members in this place is so important with regard to the bill, as it would implicate our constitutional responsibilities as members of Parliament with respect to public oversight of the legislation, as well as trustees of the public with respect to any risk litigation.

Let me be clear. There is no question that an act of war against Canadian armed forces represents a repudiation of the values that we associate with the concept of citizenship, namely democracy, security, freedom, and equality. However, it is critical that we closely scrutinize any proposed legislation that would implicate rule of law considerations.

As I have noted, the concept of citizenship in Canada is flexible and the question of under what circumstances the government is entitled to revoke citizenship has perhaps not been fully yet determined by our courts. However, unlike questions of naturalization, the revocation of formal citizenship raises important questions pursuant to sections 6, 7 and 15 of the Charter of Rights and Freedoms.

Indeed, despite the repugnance of the crimes at issue, namely, the commission of an act of war or terrorism against one's own country, constitutional rights and the rule of law are not negotiable. Therefore, the fundamental questions we must ask, and it is our responsibility to address these questions, is to what extent these constitutional rights would be implicated by this legislation.

If the members in this place are to enable the revocation by the Government of Canada of Canadian citizenship in instances of criminality such as this, we must, simply put, ensure that such revocation is consistent with the rule of law, as defined by the charter and the related jurisprudence.

As I have mentioned, there are three distinct charter provisions engaging a panoply of rights that may be implicated by changes to the Citizenship Act such as proposed by this bill. These are sections 6, 7 and 15 and which together provide for a necessary starting point in discussing the constitutional contours of the legal concept of Canadian citizenship and the implications of such revocation.

Section 6(1) of the charter provides for the right of any citizen to “enter, remain in and leave Canada”. This is one of the charter rights that applies only to citizens, rather than to permanent residents, whose constitutional mobility rights are separately provided for by section 6(2). Certainly, the revocation of citizenship in a particular instance would result in the inapplicability or denial of section 6(1)'s mobility rights.

Accordingly, on this point, it is precisely for this reason that it is of critical importance to ensure that the revocation of citizenship is consistent with procedural due process requirements. Moreover, because the revocation of citizenship would result in the revocation of section 6(1)'s mobility rights, it would also raise concerns with respect to section 7 of the charter and the right to liberty. Indeed, the Supreme Court has determined that section 7 rights apply universally to anyone present in Canada, regardless of citizenship status. As well, it would implicate the rights of security of the person also in section 7. Therefore, we would have a panoply of rights here implicated. It is a central constitutional question that we cannot avoid addressing.

Finally, we must consider section 15 of the charter, which constitutionally prohibits the federal government from passing discriminatory citizenship laws. The courts have recognized that citizenship status is an analogous ground to the enumerated section 15 protected categories, thereby providing for constitutional protection against discrimination based upon citizenship.

Moreover, section 15 has been deemed to apply regardless of citizenship status. Therefore, by allowing for the revocation of citizenship, even in cases of commission of acts of terror, but only in cases where an individual is also a citizen of another country, Bill C-425 would raise section 15 equality concerns. Simply put, the bill would potentially discriminate against those Canadians who are also dual citizens of both Canada and another country.

Some may wonder why I raise the right to a fair hearing to which I referred to earlier. Since we do not know the language of the legislative amendments proposed by the minister, it could be that the proposed revocation of citizenship is automatic, thus, depriving one of a fair hearing. In the alternative, it could be that the proposal deems an application for renunciation to have been made by the person with respect to the person who has perpetrated the act of terror. The question then becomes one of whether the person could withdraw his or her deemed renunciation or make a further submission as to why the deemed renunciation should not be granted.

I raise these questions not as arcane procedural questions or trivial debating points but as serious considerations that need to be determined and debated in committee. Indeed, there is no question that the first time this revocation process is used, for whatever reason, it will be challenged in the courts, and the government will be obliged to defend it at taxpayers' expense.

Accordingly, we must have—

[Business of Supply, February 14th, 2013]

On that last point, Mr. Speaker, I will just reiterate again. At the end of the day, what we really need is a national inquiry. I even said that not only is a commission required, but a judicial commission of inquiry is required.

The member properly asked what occurred during my stewardship as minister of justice and I am proud and happy to respond to that.

First, I stated throughout the time that I was minister of justice that aboriginal justice was a priority for me and it was on our justice agenda. It was also a priority at our federal, provincial, territorial annual meetings. The issue of murdered and missing aboriginal women was something I discussed then with representatives from the aboriginal community and recommended then that which I recommend now.

Second, and I do not want to take much time on this, I articulated then what I called the seven Rs of aboriginal justice, which began with recognition of aboriginal peoples as the original inhabitants of our country, respect for their distinctive constitutional and legal status and redress for past wrongs. I included these wrongs that needed to be redressed. I addressed the overrepresentation of aboriginal people in the criminal justice system, and we forget about this. It is an astonishing statistic. Whereas aboriginal people are some 4% of the population of our country, one of every three women inmates in the country is an aboriginal woman. We have to tackle both that overrepresentation and the under-representation of aboriginal people as judges, law enforcement authorities and the like.

On that point, one of the Rs I mentioned was the need for responsiveness. We needed to be responsive to the concerns of aboriginal people, to their alarms, to their anxieties, including constitutionally responsive, so when we engaged in certain initiatives, we had to be responsive to the duty to consult, which was a constitutional duty, which we did not take into account as well. With respect to the government of which I was a part, we did not always take that duty to consult into account. Although if we look at the record during the two years that we were there, we did seek to make it a priority on the government's agenda, not just on the justice agenda, to make this the legacy issue, as former prime minister Paul Martin put it at the time for our government.

[Business of Supply, February 14th, 2013]

Mr. Speaker, I agree with my colleague, but I am not sure they are incompatible. We can have a parliamentary inquiry and we can have a civilian oversight mechanism with regard to the police practices, both as to the matter of protection and as to the matter of police abuse, because they are interconnected. That is what causes both the alarm among the aboriginal women and girls, not only the lack of protection but the abuse along with the lack of protection.

Therefore, it may be that, along with a parliamentary committee of inquiry or growing out of it, we will have to establish, nonetheless, this independent civilian oversight mechanism, as Human Rights Watch has recommended.