Irwin Cotler

[Protecting Canada's Seniors Act, November 5th, 2012]

Mr. Speaker, I would prefer to allow the courts to make that kind of determination with respect to impact without the inclusion of the word “significant”.

I would trust judicial discretion in this regard to be able to make the appropriate determination, because the word “significant” may in fact, perhaps inadvertently, generate an inappropriate threshold without which the impact that in fact does occur and that needs to be addressed might not be addressed simply we because we have unduly and unnecessarily raised the bar by the inclusion of the term “significant”.

[Protecting Canada's Seniors Act, November 5th, 2012]

Mr. Speaker, there may be application under the circumstances and context that is appropriate, but we are dealing here with the specific question of an aggravated sentencing with respect to elder abuse. That is why I have been addressing my remarks to this particular situation.

[Protecting Canada's Seniors Act, November 5th, 2012]

Mr. Speaker, I am pleased to rise to speak to Bill C-36, what the government has named the protecting Canada's seniors act. I am pleased to do so not only as a senior myself but also on behalf of a riding that has one of the greatest concentrations of senior citizens anywhere in the country.

For a legislation with such a grand title, this enactment is actually only one clause long. Simply put, it adds a one-line addition to the Criminal Code section on sentencing, that judges are to consider “evidence that the offence had a significant impact on the victim [due to] age and other personal circumstances, including health and financial situation”.

Essentially, the bill seeks to increase sentences for offenders who abuse our seniors in the commission of any offence, which is itself a very worthwhile goal, as the Parliamentary Secretary to the Minister of Justice outlined in his remarks.

The seriousness and scope of the problem of elder abuse has been discussed over the course of our analysis of this legislation in committee, but it warrants attention yet again.

A number of studies have suggested that as many as 10% of seniors in Canada may be subjected to some form of elder abuse, yet as witness testimony before our committee put again and again, the true figure is likely much greater than that, as many cases go unreported. Indeed, underreporting, often due, inter alia, to the close or even dependent relationship between victim and victimizer, as well as the isolation of many seniors and their frequent lack of awareness about the resources that may be available to them, makes elder abuse a very complex crime to detect, to prosecute and to prevent in particular.

Accordingly, if the issue of elder abuse is to become a national priority, if it is to be effectively addressed and redressed, a concerted effort extending across party lines will be required. In that connection, I am pleased that our committee meetings on Bill C-36 generally took place in an open spirit of non-partisan co-operation. We saw at committee how efficiently matters can proceed when justice bills do not include unnecessary mandatory minimums, which very often are objectionable in and of themselves and disproportionately affect those who are the most vulnerable. Indeed, we observed that it is in fact possible for MPs to work together in a common effort to tackle crime without eliminating judicial discretion, a trend that I hope will continue.

One thing upon which committee members, witnesses and even the minister himself, as well as the parliamentary secretary in his earlier remarks, agreed is that this one-line amendment to the sentencing guidelines will not protect Canada's seniors on its own, the title of the bill notwithstanding.

Accordingly, I will organize my remarks as follows. First, I will briefly look at what Bill C-36 can be expected to accomplish. Second, I will use the remainder of my time to discuss additional avenues to explore appropriate actions to consider if we are to combat elder abuse, and how it can be done in a more comprehensive and effective manner.

The bill before us is a small step. Admittedly, it is a step in the right direction, but an insufficient step. By directing judges to consider the impact on the victim due to age, health and financial considerations as an aggravating factor at sentencing, it may lead to more serious sentences where warranted. Accordingly, when white collar criminals specifically target seniors to defraud them of their savings or of their hard-earned pension money, or if workers at seniors' homes are neglectful or violent toward residents, or in extreme cases when family members violently mistreat seniors, these offenders undoubtedly deserve to be severely punished by the Canadian justice system.

At the same time, we need to be reminded of the considerable evidence showing that longer sentences do not deter crime and that changes to sentencing guidelines are unlikely to have a preventative effect. This is particularly important in the realm of elder abuse. By the time a judge issues a sentence, the abuse has occurred and charges have been laid. Indeed, the offender must be found guilty for there even to be a sentencing process to begin with.

Nonetheless, as witnesses at committee explained, there are so many obstacles to the requisite steps in the process prior to sentencing that it is unusual for a case of elder abuse to actually arrive at the sentencing phase. The impact of this bill would therefore likely be quite modest. Again, and this bears recall, the criminal justice process is rarely utilized in cases of elder abuse. The primary reasons for this, as outlined in a report by the Library of Parliament, are as follows:

(1) the fact that prosecutions are often difficult, as the victim may be reluctant to cooperate in a prosecution against the loved one; (2) the victim may have poor health and possible present or impending mental incapacity; (3) the prosecution may take so long that the victim dies before the case goes to court; and (4) the perpetrator may be the only significant person in the victim’s life and to report and testify against them would result in loneliness and pain from the perceived consequences of the intervention.

Nevertheless, it is to be hoped that Bill C-36 would focus the attention of judges and other court officers on the particular odiousness of the victimization of the elderly, what has been referred to here as “the denunciation objective”.

Ideally, the focusing of attention within the legal system would combine with a new horizons public awareness initiative such that all Canadians would begin to be aware of the seriousness of the problem and the importance of finding solutions. Indeed, if nothing else, Bill C-36 could serve as what I would expect to be a unified statement by this House that the abuse of Canada's seniors is simply unacceptable and that hon. members condemn it in the strongest possible terms, which again goes to the denunciation objective.

Or course, condemnation only gets us so far if it is not followed by concrete action likely to facilitate the detection and, in particular, the prevention of elder abuse. Otherwise, we run the risk that Parliament and the country will move on to other pressing matters and that seniors who need help will be left with nothing but a remnant of moral support. As a case in point of how easily good intentions and even very good work can fade into the background, we need only remember the report entitled “Not to be Forgotten: Care of Vulnerable Canadians”, published one year ago by the ad hoc Parliamentary Committee on Palliative and Compassionate Care. That report is a thorough analysis of the challenges faced by elderly Canadians and the challenges faced by government institutions and others who seek to provide them with care. It contains many well-thought-out concrete recommendations on how these challenges might be met. Regrettably, most of the recommendations in the report's 192 pages have not been implemented. Yet we are left debating a bill called the protecting Canada's seniors act, which is, as I said, but one line long. It is a good bill but there is much more that must be done.

I will move to the second part of my remarks and elaborate on what can and indeed needs to be done in this regard.

First, it is crucial, as my colleague from Pierrefonds—Dollard has addressed, to raise awareness among all Canadians that the abuse of seniors is a significant problem, one that is simply unacceptable. Programs such as the federal elder abuse initiative, mentioned by the parliamentary secretary, are a welcome beginning. However, efforts in this regard must be continued and intensified. The government can do this by establishing its own set of programs as well as helping to fund those that are run by the provinces and non-governmental organizations and that warrant further support.

Increased awareness is required on a variety of fronts. Not only must everyone be made generally aware of elder abuse, but professionals who work with the elderly also require training so they will know how to properly care for seniors, how to recognize signs of abuse and how to minimize patient-to-patient abuse in institutional settings. Family members should be made aware of things they might be doing that they perhaps might not have considered to be abusive but that have detrimental effects on the seniors in their lives. Third parties need to understand that silence in the face of abuse is intolerable and that resources exist for dealing with abuse, if indeed it is reported and acted upon. Of course, seniors themselves are too often ashamed of abuse. They will minimize it and may indeed endure what is a completely unacceptable situation.

It is therefore critical that seniors be made aware that abuse is not something to be tolerated and that a range of options exists for addressing and redressing it. Alternatives to the criminal justice system do in fact exist in this regard. Indeed, seniors must be encouraged to confide in a doctor or call an elder abuse hotline. They need to be told that both hope and help are out there.

Second, in addition to raising awareness, the federal government can take the lead in enhancing our understanding of the nature and scope of elder abuse in Canada. Last year's committee report and witness testimony before the justice committee focused a great deal of attention on the fact that data on elder abuse are sorely lacking and that effective action will be difficult to take without a fuller understanding of the problem.

According to the Ontario Network for the Prevention of Elder Abuse, most agencies do not keep information on the number of cases reported or responded to. Without national standards for collecting statistics about elder abuse, we are simply left patching together data from different studies with different scopes and methodologies, along with anecdotal evidence from a patchwork of jurisdictions. HRSDC has funded preparatory work for a national prevalence study through the national initiative for the care of the elderly, referred to earlier. A good way for the government to demonstrate its seriousness on this file would be to ensure high level and sustained funding for the study itself and its recommendations.

A third recommendation that was mentioned in the report and that arose frequently at committee meetings on Bill C-36 was the need for increased funding and support for institutions, often non-profit organizations that do much of the on-the-ground work in the fight against elder abuse. We met some remarkable people at committee who work daily to protect seniors, and I commend their efforts and those of other professionals who are instrumental in preventing, detecting and addressing elder abuse. They described to us some truly appalling cases of mistreatment and yet remain undeterred in their tireless and noble service to seniors and therefore, in effect, to all of us. We should be very grateful to them and very proud of their good work, which we commend them for and trust will continue.

One can hope that such dedicated people will continue their good work regardless of government funding, but we need not equivocate with respect to such a commitment. Groups need financial and other resources to hire and train responders to intervene in cases of elder abuse, and to set up elder shelters and affordable housing, as my colleague for Pierrefonds—Dollard said, and elder abuse hotlines and victim support services, and to develop pioneering initiatives such as financial literacy programs for seniors to help them protect themselves from fraud. The federal government must be at the forefront of funding and nurturing such activities, as my colleague from Pierrefonds—Dollard said, to help them escape poverty.

Inadequate funding of such organizations can have an impact in ways that we do not always consider. That was explained at committee by a member of the elder abuse intervention team from Edmonton's Catholic Social Services, who talked about how important it was that instances of elder abuse be handled by experienced staff. Unfortunately, cases of elder abuse are too often dealt with by people who may lack the necessary experience, as the organization's inability to offer high-paying jobs leads to employee turnover and employees leaving after short periods of time.

A lack of resources may also mean that when people do as they are told by public awareness campaigns and report abuse, organizations may then become overloaded and unable to respond precisely because they do not have the resources to begin with. As a result, people who report abuse understandably become frustrated and less likely to report it in the future. Ultimately, these organizations are doing impressive things with very limited resources, but they need more government support.

Fourth, the federal government can also do more to help address the systemic inadequacies that are at the root of many cases of elder abuse. Witness testimony before committee highlighted a number of these systemic inadequacies. Employees in health care facilities are often faced with an excessive workload and long hours, factors that can create an environment in which elder abuse is more likely to occur, especially when combined with inadequate training.

Better training is required particularly to help workers detect and deal with patient-to-patient mistreatment, a form of elder abuse that often goes unnoticed. As well, overcrowding can lead to an elderly patient being repeatedly transferred from one institution to another, a state of affairs that one witness at committee said should qualify as institutionalized abuse.

Fifth, and as a corollary to this point, increased funding for home care might help with overcrowding by keeping many seniors out of institutions in the first place, thereby distributing the responsibility. Even though most of these institutions operate under provincial jurisdictions—although veteran hospitals, for example, are federally run—the federal government has a clear role to play in helping to ensure adequate health care funding. When health transfers are clawed back, it becomes that much more difficult for the provinces to address these issues.

Sixth, at the same time as we tackle these systemic problems to which I have referred, we must also deal with those specific individuals who abuse the elderly, which is what Bill C-36 attempts to do. However, there are a number of other ways in which elder abuse can be addressed from a criminal justice perspective.

The minister said at committee that he recognizes the important role that law enforcement officers and other legal professionals can play in preventing, detecting and intervening in cases of elder abuse. I was glad to hear that perspective taken, and I hope to see that recognition translate itself into action.

However, better training required for police officers and officers of the court in how to deal with seniors is something that needs to be put into place. Young police officers may not always know, for example, how best to gain the trust of an elderly victim, and lawyers who prosecute elder abuse cases may need to adjust their interrogation techniques to make them more effective with certain seniors.

Another way of increasing the effectiveness of legal professionals is to include them as part of multidisciplinary teams—a recommendation that was made by almost each one of the witnesses who appeared before us—such as exist already in certain parts of the country and in those of the witness testimonies who made reference to them. When elder abuse is detected, police officers, social workers and health care professionals can coordinate from the start to ensure that the situation is dealt with appropriately from a social and medical perspective as well as from a legal one.

For our part as legislators, we should consider certain changes to the Criminal Code that can have a greater impact than Bill C-36. Witnesses at committee raised the possibility of enacting specific elder abuse laws that would complement those already in place in provinces and territories.

In addition, the committee discussed whether a mandatory reporting law for elder abuse might be appropriate. One witness, a social worker from Alberta, told us he has a legal duty to report the abuse of a child but no such duty to report the abuse of a senior citizen, by contrast.

In general, there seemed to be support, among the professionals we heard from, for a law that would require at least those who encounter abuse in the course of their professional duties to report it to the authorities. Such a law could supercede certain confidentiality barriers so that those who encounter abuse are not professionally bound to keep it secret.

For example, bank employees sometimes suspect that a senior is being taken advantage of financially, but they are unsure whether they are permitted to do anything about it. Clarifying the legal obligations of such an individual could help stem the tide of financial abuse of the elderly.

These are just some of the many ways in which the government could truly be “protecting” Canada's seniors.

I appreciate that the minister and the Conservative members of the committee agreed that Bill C-36 alone is not enough. However, they have yet to put forward sufficient concrete supplementary measures in the realm of health care, research and justice, and they have yet to provide adequate support for community initiatives. Instead, regrettably, health care transfers have been reduced; old age security has been cutback; and attempts to deal with the problems with the Criminal Code, while acceptable as far as they go, focus only on punishment—again, after the fact—and not on the necessary prevention itself. Seniors could be forgiven for looking at this one line “protecting Canada's seniors act” and wondering where the rest of it is.

As a side note, this House, last Wednesday, began third reading of Bill C-28, financial literacy leader act. This is important legislation regarding the Financial Consumer Agency of Canada, which itself has a role to play in the combatting of financial abuse of seniors.

At the risk of going beyond the scope of this debate, I do hope that the post of financial literacy leader, once this legislation has passed, would recognize his or her role in combatting elder abuse by improving not only the financial literacy of seniors but their understanding of the rights they possess when confronted with things like inappropriate investments, affinity fraud and aggressive sales tactics, all of which the Financial Consumer Agency of Canada identifies as methods used to target seniors.

Returning and concluding—

[Nuclear Terrorism Act, November 5th, 2012]

Mr. Speaker, this legislation represents a first step on the domestic level with regard to the implementation of our obligations under international treaties, which now finally, belatedly, will be both ratified and implemented.

However, it represents only a first step and it deals only with the domestic criminal law enforcement step. It does not deal with the overall, multilateral involvement that is required of us in terms of combatting the overall nuclear proliferation danger, as well as all the others I have mentioned.

We need to go beyond this legislation, which is effectively, importantly, a domestic law enforcement tool that does not deal with the important, compelling, international, multilateral arms control and disarmament initiatives we need to be taking.

[Nuclear Terrorism Act, November 5th, 2012]

Mr. Speaker, that would underpin my entire approach to saying that the Canadian government must list the Iranian Revolutionary Guard Corps as a terrorist entity. As all studies have shown in this regard, as I mentioned in my remarks, the IRGC has emerged as the epicentre of the fourfold Iranian threat that I described and is particularly engaged both in the matter of nuclear proliferation and international terrorism. Should it be characterized as a military organization rather than as the terrorist entity it is, then it could somehow find a loophole to be protected against the application of this legislation.

In that regard, we must therefore move with all deliberate speed, which I have been suggesting for years, to list the IRGC as a terrorist entity under Canadian law. In fact, when the Canadian government closed the embassy in Iran, I listed four initiatives that could have been taken, apart from closing the embassy, which would have had compelling impact: number one, listing the IRGC as a terrorist entity; number two, holding Iran accountable for its state-sanctioned incitement to genocide; number three, holding to sanction those engaged in massive human rights violations; and number four, engaging, as I said, in a much more active way in combatting the nuclear proliferation program in Iran.

Those are the activities we still must undertake, and they are more important than the issues of simply closing the embassy in Iran because they would have substantive effect in terms of our combatting overall the fourfold threat that Iran represents, in particular its nuclear proliferation threat that is underpinned by its genocidal incitement threat, as well as its international terrorist conduct, in which not only the Iranian Revolutionary Guard Corps but its terrorist proxy Hezbollah also has been engaged. While we have put Hezbollah on the terrorist list, we might encourage our European counterparts to do the same.

[Nuclear Terrorism Act, November 5th, 2012]

Mr. Speaker, at the time, we did support these treaties and, at the same time, we supported their ratification.

[Nuclear Terrorism Act, November 5th, 2012]

Mr. Speaker, there are several responses to that question.

On the matter of the closing of the embassy, as I said and wrote at the time, I supported the four considerations that led the government to consider closing the embassy, namely the question of the nuclear weaponization program, the incitement to genocide, the terrorist character, and the massive domestic repression.

As to the specific issue of the closing of the embassy, it is quite interesting and timely that yesterday evening I attended the annual meeting of the International Center for Human Rights in Iran, a Canadian-based NGO composed largely of Canadian Iranians. The predominant view last night was that while it may cause a certain inconvenience to Canadian Iranians in regard to certain consular activities, on the whole they supported the decision because of their great concern that the Iranians were using their Iranian embassy here in Canada for illegal activities to intimidate Iranian Canadians here as well as their families back in Iran. As well, the Italian government, which has been given the representative capacity of pursuing Canadian concerns, can do that, which the Canadian embassy in Iran was effectively being precluded from doing with any kind of effective diplomatic engagement.

Having said that, none of that affects our need and responsibility to engage in the whole framework of multilateral negotiations. Therefore, whatever position one takes on the closing of the embassy, that should not deflect us away from or preclude our appreciation of the fact that Canada can play a role with respect to the multilateral negotiations to combat the nuclear weaponization program in Iran, which underpins as well its state-sanctioned incitement to genocide and leverages its massive domestic repression and terrorism. It can do so through the framework I outlined earlier with regard to the eight points that Canada can play a role in.

[Nuclear Terrorism Act, November 5th, 2012]

Mr. Speaker, I am pleased to rise today to speak to Bill S-9, the nuclear terrorism act, which would amend the Criminal Code to implement obligations imposed on state parties to two international conventions: the International Convention for the Suppression of Acts of Nuclear Terrorism, which I will refer to as the “suppression convention”; and the amendment to the Convention on the Physical Protection of Nuclear Material, which I will refer to simply as “the amendment”.

My remarks this morning will be divided into three parts: first, a discussion of the convention and the amendment; second, a discussion of Bill S-9 and how it relates to these international obligations; and third, a discussion of the contemporary context in which this debate occurs, namely, the climate of increasing nuclear proliferation in which we find ourselves.

To begin with, the suppression convention and the amendment contribute to the development and harmonization of national laws aimed at securing nuclear materials and combatting the threat of nuclear terror. In particular, Bill S-9 would add four new offences to the Criminal Code thereby prohibiting acts in relation to the possession, use and transfer of radioactive or nuclear devices or related materials as well as the protection of nuclear facilities.

Bill S-9 would also classify the commission of these new offences as “terrorist activity” and empower Canadian courts to exercise jurisdiction in cases concerning the commission of these offences extraterritorially such that the particular offence would not need to have occurred inside Canada for Canada to invoke Canadian prosecutorial initiatives.

In particular, the passage of Bill S-9 would enable Canada to ratify these conventions, a goal to which the government recently committed at the 2012 Nuclear Security Summit in Seoul.

Members of the House may remember the political environment in which the summit occurred, back in March, with the launch by North Korea of a satellite that threatened South Korean airspace. It is in this context that the Minister of Foreign Affairs correctly observed that:

What's going on in North Korea, and frankly what could be going on in Iran, causes us all concern but I think that's an inspiration and a motive for us to see that nuclear materials that already exist are secured or even destroyed....

What the minister observed then is no less true now.

Bill S-9 is of critical importance. Indeed, the need for the legislation has long been known. In fact, the 2005 government of Prime Minister Paul Martin, under which I served, signed the suppression convention at the time. While the subsequent election precluded our legislative efforts to fully ratify and implement its obligations, I am pleased that the current government has taken up this task.

However, it is regrettable that seven years have passed in the interim. Certainly, the minister's current support for the promotion of an international framework to govern the prevention of nuclear terrorism is to be applauded. Yet, it remains as inexplicable as it is somewhat irresponsible for the government to have delayed this long, particularly on such a compelling international commitment of the first order.

Before us today is not the convention but rather Bill S-9, legislation introduced in the other place to implement principles embodied in these two international conventions agreed to, as I mentioned, by the Liberal government in 2005. Just as the Liberal government supported the promotion of a global framework for the protection of nuclear material and the prevention of nuclear terrorism then, we continue our support of this effort now. I would urge all colleagues to send the bill to committee for appropriate study and review.

I will support Bill S-9 at second reading as it implements Canada's international policy commitments in this regard. To echo the words of Senator Roméo Dallaire, nuclear weapons constitute, as he put it, “the most extreme massive violation of human rights imaginable” and serve as a violation of our human right to peace and security in the world.

The consequences of fissionable material falling into the hands of a rogue state or non-state terrorist organization are as dangerous as they are prospectively unimaginable. Bill S-9 reflects this imperative to ensure the security of nuclear materials and facilities in this regard. By amending the Criminal Code, and particularly by implementing extraterritorial jurisdiction, the bill would provide the Attorney General with the necessary enforcement tools. These tools find expression in four new criminal offences created by Bill S-9.

First, Bill S-9 would make it an indictable offence to make a device or possess, use, transfer, export, import, alter or dispose of nuclear or radioactive material or a device with the intent to cause death, serious bodily harm or substantial damage to property or the environment. It would also criminalize the commission of an act against a nuclear facility or an act that causes serious interference or disruption of a nuclear facility's operation.

A second offence makes it an indictable offence to do any of these same acts with the specific intent to compel a person, government or international organization to do or refrain from doing something. In other words, where the first offence speaks of intent to cause death, this offence speaks to coercion and threats with a nuclear connection.

Third, Bill S-9 would make it a separate indictable offence to commit any indictable offence with the intent to obtain nuclear or radioactive material, or to obtain access to a nuclear facility.

Fourth, the legislation makes it an indictable offence to threaten to commit any of the aforementioned new offences.

Moreover, Bill S-9 would include these four new offences within the definition of “terrorist activity” in section 83.01 of the Criminal Code. As such, the commission of these offences would trigger other provisions of the code in respect of related offences, such as electronic surveillance and DNA collection.

Bill S-9 has benefited from an extensive debate in the Senate and I trust that members of the House will agree to send it for further study by the committee in our House, where more of the technical details would be scrutinized.

I will now turn my attention to the context in which the debate occurs, namely the question of nuclear proliferation and disarmament and Canada's role in this regard.

Indeed, as important as it is, Bill S-9 simply standing alone would not be enough. Despite our best efforts, nuclear materials and facilities will always be vulnerable. Indeed the protection of these stockpiles is only necessary as long as they actually do exist. As long as nuclear weapons and highly enriched uranium are developed by states and pursued by terrorist organizations, they will pose a threat to human security. It is in this regard that the government's leadership has been lacking.

Indeed, as members of this place may recall, the Canadian delegation in Seoul was subject to heavy criticism by both the U.S. and the EU for having not lived up to earlier undertakings to begin the phasing out of the use of highly enriched uranium in the production of medical isotopes. Simply put, Canada should be at the forefront of the move toward arms control and international nuclear disarmament. Measures such as those in Bill S-9 must be viewed as preliminary measures, as part of a larger and developing framework of non-proliferation.

Indeed, I am concerned that perhaps the government's modus operandi when it comes to domestic criminal justice is slightly orienting its approach to foreign policy and that it may be presuming that the mere criminalization of a behaviour is enough to combat it. We know that complex and multifaceted problems such as proliferation require so much more than this.

Certainly, Bill S-9 would contribute to the prevention of nuclear terrorism by enabling law enforcement to prosecute terrorists before they achieve their intended death and destruction. Given that a single nuclear attack under any circumstance is simply not acceptable and that the risk of nuclear terrorism will never reach zero as long as weapons and devices exist and can be accessed by such terrorists and non-state actors, the bill would be inherently limited as an instrument of prevention and must be viewed as just the first step.

Let me be clear. I unequivocally support the creation of these new offences and recognize the important role of domestic criminal law enforcement in combatting the problem of nuclear weapons. Also, as I have stated elsewhere, I support sending the legislation to committee. My purpose here is only to emphasize the importance of international collaboration and international legal regimes in pursuit of non-proliferation and the ultimate goal of disarmament, which must be the end objective here.

As Senator Dallaire put it during debate in the other place, “we [should] discuss how this legislation fits into the broader stance Canada has taken and needs to take against nuclear weapons”. Simply put, we must be steadfast in our insistence that dangerous and genocidal regimes can never be trusted with nuclear weapons under any circumstances.

Diplomatic and legal institutions exist that must underpin Canadian policy in this regard. For instance, Canada should take a leading role in the push for a comprehensive nuclear weapons convention that would require countries with nuclear weapons to gradually destroy them and remove all fissile material to UN control. We should be supporting the United Nations Secretary-General's comprehensive set of proposals with respect to nuclear disarmament.

Moreover, we must pursue international legal remedies against regimes that engage in genocidal threats, particularly those that underpin those threats with nuclear weaponization.

We must view nuclear weapons for the use to which they could perhaps be dangerously put in support of these regimes' genocidal intent. We must insist that they be kept out of the hands of those states that flagrantly disregard international law, threaten the peace and security of the international community, and threaten the rights of their citizens. Indeed, as has been observed, states that violate, and massively violate, the rights of their own citizens are most likely to violate the rights of others.

The prime example of this threat in the modern context is that of Khameini's Iran. I use that term to distinguish it from the people and public of Iran who are otherwise the targets of mass domestic repression. In Khameini's Iran the steady progression toward nuclear capabilities demonstrates the importance both of domestic criminal law enforcement, as we have been discussing, as well as multilateralism and international legal regimes.

Bill S-9 deals with the domestic problem. With regard to the Iranian nuclear threat, however, we must continue to engage internationally as well.

I have described the Iranian threat in terms of a fourfold threat: the nuclear threat, the incitement threat, the terrorism threat, and massive domestic repression. Let there be no mistake about it that Iran is in standing violation of international legal prohibitions respecting its nuclear weaponization program. Iran has already committed, as an all-party committee of the foreign affairs committee in this House determined, the crime of incitement to genocide prohibited under the genocide convention itself.

Iran has been characterized as a leading state sponsor of international terrorism, and indeed its terrorism in 2012 alone, spanning five continents and some 22 terrorist acts with Iranian footprints, has served to further affirm that proposition. Finally, as I mentioned, Iran is engaged in such massive domestic repression that the latter effectively constitute crimes against humanity against its own people.

This brings me to the particular issue of the manner in which Canada must address the whole question of nuclear proliferation with regard to Iran. Here the international context and our role in that context becomes particularly important.

I would like to suggest that Canada support the prospective P5-plus-1 negotiations with Iran, with whatever diplomatic strategy may develop in the context of those negotiations, and put forward the following requirements with respect to combatting nuclear proliferation in general, but in particular with regard to Iran's nuclear weaponization program.

First, Iran must as a threshold requirement verifiably suspend its uranium enrichment program, allowing the international community to counter the Iranian strategy, the three Ds of delay, denial and deception, used by Iran to accelerate it nuclear weaponization program rather than, in fact, move toward disarmament.

Second, Iran must ship its supply of enriched uranium out of the country, where it can be reprocessed and then made available to Iran under appropriate inspection and monitoring for use in civil nuclear programs.

Third, Iran must verifiably close and dismantle its nuclear enrichment plant at Fordow, embedded in a mountain near Qom, which Iranians initially denied even existed but where a zone of impenetrability will soon develop unless that facility is in fact dismantled.

Fourth, Iran must suspend its heavy water production facilities at Arak. It is sometimes forgotten that an essential component for producing plutonium could also be water, which is a nuclear component that North Korea uses for its own nuclear weapons. Simply put, the path to nuclear weaponization need not be travelled by uranium enrichment alone. The suspension of uranium enrichment, however necessary, will not alone ensure that Iran is verifiably abandoning its nuclear weaponization program.

Fifth, Iran must allow the International Atomic Energy Agency inspectors immediate and unfettered access to any suspected nuclear site, as Iran is a signatory to the nuclear non-proliferation treaty. Iran is thereby bound by its obligations not to pursue nuclear weapons but also to open its nuclear sites and installations.

Sixth, Iranian authorities need to grant the IAEA access to the parts and military complex near Tehran, where it has been reported that Iran has conducted high explosives testing, possibly in conjunction with the development of a nuclear weapon.

Finally, Iran needs to allow the International Atomic Energy Agency to install devices on centrifuges to monitor Iran's uranium enrichment levels.

These are the kinds of threshold approaches that Canada can assist in framing and thereby assist in combating proliferation. As I said, a foreign affairs committee of the House has determined that Iran engages in state sanctioned incitement to genocide. The convergence of the two makes the threat even more dangerous than it might otherwise be.

There are a number of remedies that Canada could engage in that it has not yet done, both to combat the nuclear proliferation dimension and genocidal incitement. In other words, there are juridical remedies that we have not sufficiently explored.

First, we could simply ask the United Nations Secretary General to refer this to the UN Security Council for deliberation and accountability as a matter that “threatens international peace and security”, which is under the jurisdiction of the UN Secretary General.

Second, any state party to the genocide convention, including Canada, could initiate tomorrow an interstate complaint against Iran, a state party to that genocide convention, before the International Court of Justice.

Third, Canada, or any other country, could ask the UN Security Council to refer the matter of Iran's state sanctioned incitement to genocide, underpinned by its nuclear weaponization program, to the UN Security Council for purposes of inquiring into individual criminal liability. There are other remedies, but I will limit it in this regard.

Finally, before I conclude my remarks, I would like to return to one specific technicality relating to Bill S-9 and to link it to the problem of Iranian nuclear weaponization. As members of this place may know, despite making reference to the matter, the government has failed to take any action to list the Iranian Revolutionary Guard Corps as a terrorist organization under the Criminal Code. Simply put, the IRGC has emerged as the epicentre of the Iranian four-fold threat to which I referred, and has played a central role in Iran's domestic repression, international terrorism, incitement to genocide and nuclear proliferation.

The United States has already labelled it a terrorist group, while the UN and the European Union have imposed various sanctions against the IRGC and its leaders. It is regrettable that Canada has yet to take the step of listing it as a terrorist entity here in the Criminal Code, a step that would combat the nuclear proliferation, genocidal incitement, as well as the international terrorism. Indeed, the IRGC, acting through Hezbollah and the terrorist proxies of Iran, was implicated in the attempted assassination of the Saudi ambassador in Washington, and in July's terrorist attack targeting Israeli tourists in Bulgaria that resulted in seven deaths, as well as a series of international terrorist attacks during 2012.

Of course, the international juridical remedies I outlined must be pursued against the IRGC and its individual members and leaders. Indeed, I have long called for the listing of the IRGC as a terrorist organization, and I mention it now in relation to Bill S-9 to highlight one particular aspect of the bill that needs to be more closely studied at committee with related amendments as may be moved in this regard.

Another important feature of the bill is its military exclusionary clause, which would ensure that none of the newly created offences would apply to “activities undertaken by military forces of a state in the exercise of their official duties, to the extent that those activities are governed by other rules of international law”.

My concern is that activities by or in relation to the IRGC could be argued to fall into this category insofar as the IRGC could be characterized as a military force of a state and not as a terrorist organization. Clearly, the actions of the IRGC can be demonstrated to be in violation of international law, thus precluding protection under this clause. Still, so long as they are not expressly designated as a terrorist organization under the Criminal Code, this legal loophole will still loom over our discussions.

Again, we must situate Bill S-9 within the larger context of nuclear proliferation and the Iranian nuclear threat in particular, and thereby scrutinize the bill to ensure that it could have the intended effect of preventing nuclear terror. Accordingly, I reaffirm my request for the government to list the IRGC as a terrorist organization. I further suggest that the effect of the military exclusionary clause be more closely considered in committee to ensure that Bill S-9 would not be precluded from achieving effective prevention.

Canada has a tradition and reputation for taking the lead in multilateral efforts of this kind. Our nation is rich in effective soft power resources, and under previous governments we have demonstrated that multilateral leadership can achieve solutions to the seemingly most intractable problems of international co-operation and the pursuit of human security. I remind the House of our nation's leading role in the negotiation of the 1997 Ottawa treaty banning the use of anti-personnel landmines, where Canada mobilized governments and non-governmental organizations to achieve the signing of that landmark global treaty. We should also recall that Canadian leadership was effective then in changing the behaviour of governments and militaries, ultimately proving that disarmament is an achievable goal. Canada should be pursuing that goal today with respect to the overall context of proliferation, particularly as it relates to Iran.

[Human Rights, November 2nd, 2012]

Mr. Speaker, I recently participated in the U.S.-based Freedom Forum, which brought together former political prisoners, dissidents, human rights advocates, thinkers and innovators at the cutting edge of the global struggle for freedom, which conferred the Vaclav Havel Prize for Creative Dissent on Nobel Peace Laureate Aung San Suu Syi, an honorary citizen of Canada, who spoke movingly of the struggle for freedom always retaining its moral compass. In her words, “we need to free our people not just from oppression but from their own fears and their own hatred”.

The forum included riveting speeches by Iranian-Canadian author and former political prisoner Marina Nemat, reminding us of the plight of political prisoners in Iran, including Iranian-Canadians Saeed Malekpour and Hamid Ghassemi-Shall, and in respect of which we have established a global Iranian political prisoner advocacy program, and by Manal al-Sharif, the Saudi Arabian women's activist, who spoke of the ongoing repression of women, even in the aftermath of the Arab Spring.

The forum serves as a beacon of hope for those suffering in the shadows of human rights violations, reminding us all that we must enlarge and enhance the international struggle for freedom. We look forward to the launch of a Canadian-based Freedom Forum in the new year to advance the cause of freedom, justice and human rights for all.

[Correctional and Conditional Release Act, October 26th, 2012]

Mr. Speaker, I am pleased to rise today on the debate on Bill C-350, an act to amend the Corrections and Conditional Release Act (accountability of offenders).

This is a particularly timely debate, as the justice and human rights committee, upon which I sit, continues its deliberation on the matter of Bill C-37, increasing offenders' accountability for victims act.

I will organize my remarks today around two themes. First, I will address where the bill fits within the government's overall approach to crime and justice. Second, I will address the specific critiques I have on this legislation, particularly from a law and poverty perspective.

May I state, parenthetically, that I began my law teaching career some 42 years ago in the area of law and poverty. One of the first books I co-edited was one that was precisely entitled Law and poverty.

The common thread of both Bill C-37 and Bill C-350, legislation proposed by government members, is that they both seek to address the accountability of offenders through financial obligations on or after sentencing.

Bill C-37 proposes to double the victim surcharge and make it mandatory. Bill C-350 proposes to amend the Corrections and Conditional Release Act to provide that any monetary amount awarded to an offender pursuant to a legal action or proceeding against the Crown must be paid to victims and other designated beneficiaries.

It bears repeating that all parties agree on the objectives of these two pieces of legislation, namely that offenders must be held accountable for their acts and that restitution must be made. It is an objective of the sentencing process outlined in the Criminal Code itself.

However, the Criminal Code provides other purposes in sentencing. I believe section 718 of the code bears repeating, for the benefit of colleagues and those hearing these debates. It states:

The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions....

I pause here in my reading of this section to note that the Criminal Code places sentencing efforts alongside crime prevention initiatives. Indeed, the two are given equal footing.

Regrettably, while we have a steady stream of legislation from the government with respect to increasing and enhancing sentencing, particularly in regard to imposing mandatory minimum penalties and the like, we have seen very little with respect to crime prevention. Indeed, both Bill C-37 and Bill C-350 can hardly be said to be preventative measures, an issue that I will address shortly.

I will excerpt further from the Criminal Code, which speaks of the purpose of sanctions, and I quote:

...just sanctions that have one or more of the following objectives: (a) to denounce unlawful conduct; (b) to deter the offender and other persons from committing offences; (c) to separate offenders from society, where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or to the community; and (f) to promote a sense of responsibility in offenders and acknowledgment of the harm done to victims and to the community.

I realize that it is not the preferred practice for members to read excerpts from statutory text. However, it may well be necessary in this case to illustrate that the objective here, in the bill's own words, “increasing accountability of offenders”, or in the language of the Criminal Code, “promoting a sense of responsibility in offenders and acknowledgment of the harm done”, is the sixth and final objective in sentencing.

This is not to say that this objective is not worthwhile or that it ought not to be pursued. Rather, it is simply to note that it ought to be pursued alongside or together with the other objectives expressly mentioned in the code.

Again, while we have seen many pieces of government legislation that address accountability, we do not see any, for example, with respect to the objective of the rehabilitation of offenders. Despite the fact that the member for Stormont—Dundas—South Glengarry characterizes the legislation as dealing with rehabilitation, in fact it ignores the whole issue of rehabilitation.

This is where I believe the government's approach to criminal policy is particularly problematic. Conservatives propose, often in a piecemeal fashion, provisions pertaining solely to one objective, thereby missing an opportunity to develop a holistic and integrated approach to criminal law policy. That is, one that addresses not only what to do after the fact, after the offences occur, but no less important, why people commit crimes, and particularly how they can be prevented from committing those crimes—the whole with a view to protecting public safety and preventing the victimization to begin with.

We are all in favour of concern for and protecting the rights of victims but our objective must be to prevent the victimization and the crime to begin with.

In debates over Bill C-37 and Bill C-350, government speakers spoke of the deterrent objectives of these pieces of legislation. As I have noted in the House before, it is difficult to imagine that an offender who would otherwise commit an offence would somehow desist from doing so upon being informed of either a victim surcharge or a priority system of extinguishing debts once incarcerated. Addressing offenders after the fact ignores crime prevention as a necessary element of any criminal law policy. Moreover, doing so by financial measures alone does not assist with rehabilitation, an essential element of any criminal justice agenda.

Turning now to the specifics of the bill before us, Bill C-350 establishes that before an inmate can make use of any financial compensation gained as a result of a court proceeding against the Crown, certain groups must receive payment first. It thereby establishes a priority of debt repayment program. The first is paid to outstanding spousal or child support, followed by outstanding debt or restitution owed to the victim, such as for therapy or medical bills. Third is the debt owed to third parties who acted in good faith, followed by any victim surcharge imposed during sentencing. Subsequently, the priority is to debts owed by the offender as a result of any other court case, whether civil or criminal, and only after these conditions are satisfied may the offender receive the monetary award for use at his or her discretion.

The government has framed this legislation in terms of supporting victims, noting the need to fund restitution orders that courts may impose to address, for example, damage to, or loss or destruction of, a person's property or bodily or physiological harm to any person. Again, it must be reaffirmed that this is something that all parties support and stand behind, and was a central theme of my own tenure as minister of justice.

The problem here is that when it comes to the impecunious offender, courts have noted this concern in relation to restitution, such as the Ontario Court of Appeal in R. v. Scherer wherein the court found that:

It may be that in some cases it would be inappropriate and undesirable to make a compensation order in an amount that it is unrealistic to think the accused could ever discharge.

The reason for this is in part what the Manitoba Court of Appeal found in R. v. Siemens and again I quote:

The impact of a restitution order upon the chances of rehabilitation of the accused, either pro or con, is a factor to be considered....

A compensation order which would ruin the accused financially, thus impairing his chances of rehabilitation, should not be imposed....

As such, I am particularly concerned about the impact of the legislation on those who may be of limited financial means. Directing funds from an award may impact upon the rehabilitation of an offender. In this regard, discretion should have been built into the legislation before us. Moreover, in the cases of those with no means, it is unclear how this legislation would serve the purposes of offender accountability. Simply put, if someone cannot afford any of the fines levied, the legislation would not achieve its objectives.

Here and also in respect of Bill C-37, it is important to recall the words of the Supreme Court of Canada in R. v. Wu:

[I]t is irrational to imprison an offender who does not have the capacity to pay on the basis that imprisonment will force him or her to pay....

For the impecunious offenders...imprisonment in default of payment of a fine is not an alternative punishment—he or she does not have any real choice in the matter.

Again, as I noted in my generic critique of the government's justice agenda, not enough focus is being placed on prevention and tackling the underlying causes of crimes, chief among them being poverty.

In my limited time remaining I will briefly outline additional concerns with the legislation, many of which were raised in committee and might be raised in the other place. First is whether or not the bill is constitutional from a federalism perspective, and reference has been made to this by my NDP colleagues so I will refrain from enlarging on this point. Second, the bill does not address what happens to these payments in cases of wrongful conviction, an issue with which I was preoccupied as minister of justice and appreciate this concern. Third and finally, there is a concern that this legislation may deter inmates from taking action against the Crown when there are legitimate grounds to do so, such as in cases of prisoner abuse, because they would not be able to use the award as they see fit.

While the Liberal Party supports the intent of the bill, we feel that the bill and these concerns must be addressed further so as to achieve the objectives of the bill.